Halifax Unenforcable agreement?

[vint1954]

Hi all.

 

Having been recently made redundant, I did the reponsible thing in contacting my creditors and offering reduced monthly payments for a short period. All responded with venom, not offers of help.

 

Found this site by accident, looking for guidence. Glad I did!

 

Following advice in the threads, I have now issued CCA request letter to see what comes back. Looks like I am in for a long battle, but I am now prepared to see it to the end, hopefully with help from the great contributors on this site.

 

Vint1954

[Jeff2000]

Hi all.

 

Having been recently made redundant, I did the reponsible thing in contacting my creditors and offering reduced monthly payments for a short period. All responded with venom, not offers of help.

 

Found this site by accident, looking for guidence. Glad I did!

 

Following advice in the threads, I have now issued CCA request letter to see what comes back. Looks like I am in for a long battle, but I am now prepared to see it to the end, hopefully with help from the great contributors on this site.

 

Vint1954

 

 

 

 

Hi Vint,

 

 

Welcome to CAG!

 

Once you have received anything back from Halifax post it up for all to see! (minus any personal details).

 

Then give us a brief description of what has happened regarding your account to date!

 

Do this for your other accounts also!

 

Small word of warning, Halifax BOS are, in my opinion, an ignorant bunch of bankers! They will pass your account from one DCA to the next regardless of the letters you send etc!

 

 

Have a look at my BOS thread;

 

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/121252-bank-scotland-blair-oliver.html

 

 

Best wishes, Jeff.

[vint1954]

Hi Jeff,

 

Thanks for the replies. I have checked out both of your threads. Looks like you have been at it for a while.

 

So far the letters are regarding arrears over Feb and March, although I have been paying a token amount. However, I have had a letter from RMA and many answerphone messages regarding the 2 months arrears. I have reffered them back to MBNA in writing.

 

I will keep this thread updated as things progress.

 

Thanks

 

Vint1954

[Gazza112]

Hi Vint

 

Have you CCA'd all your Creditors, if not i would do so.

And try and keep a different thread going for each Creditor.

Then do what Jeff said, when you get your info back just post it up without your personal details.

 

Gaz

[Jeff2000]

Hi Jeff,

 

Thanks for the replies. I have checked out both of your threads. Looks like you have been at it for a while.

 

So far the letters are regarding arrears over Feb and March, although I have been paying a token amount. However, I have had a letter from RMA and many answerphone messages regarding the 2 months arrears. I have reffered them back to MBNA in writing.

 

I will keep this thread updated as things progress.

 

Thanks

 

Vint1954

 

 

 

Hi,

 

 

Don't forget, from now on only deal with these people in writing. Send your letters recorded delivery!

 

Do not speak to them on the phone!!

 

Unless you want a bit of fun! This is the place where we have a bit of a laugh at the debt industry's expense!! Enjoy!

 

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/131409-cheekiness-towards-dca.html

 

 

Good luck!

 

Jeff.

[spartathisis]

Bear in mind they will all still try to ring you even if you say putit in writing. If they have only your mobile number put a ringtone to their name (mines theme from halloween) then you wont answer by accident:)

 

There is lots of helpful info on the forum have a good read of the basics, usually in the stickys, and get the background on everything before you jump in with both feet. I came here 5 months ago worried to death over the debt I owed, but now having received either nothing or application forms from my creditors I look forward to their post!

 

Had a letter today from Cabot saying the debt they bought from the Halifax was on hold because they were having difficulties with retrieval of my CCA, oh dear;)

 

Dont ignore any letters and keep everything they send it may be useful in your fight. Good luck.

[vint1954]

Hi Gaz,

 

Yes, I have sent CCA requests to all 3 CC companies, by recorded delivery.

 

I have set up a new thread for each CC and will post the documents as they arrive.

 

Vint

[vint1954]

Hi Jeff,

 

Thanks for the advice. I am only dealing with them in writing ( No signature! )

 

Vint

[vint1954]

Hi Spartathisis,

 

Generally the numbers that they have for me are old work mobiles, so they will not have any luck contacting me by phone.

 

I have had a good read through the forum and used a template to send off the CCA requests.

 

The anoying thing is that I contacted all 3 CC companies as soon as I had been made redundant, but they chose not to help over the short term, so they have left me with no option but to fight back.

 

It would be interesting to know how many CC companies back down or fail, against those that win in court.

 

Vint

[Gazza112]

Hi Vint

 

When did you take out the Halifax card.

 

Gaz

[Jeff2000]

Hi Spartathisis,

 

Generally the numbers that they have for me are old work mobiles, so they will not have any luck contacting me by phone.

 

I have had a good read through the forum and used a template to send off the CCA requests.

 

The anoying thing is that I contacted all 3 CC companies as soon as I had been made redundant, but they chose not to help over the short term, so they have left me with no option but to fight back.

 

It would be interesting to know how many CC companies back down or fail, against those that win in court.

 

Vint

 

 

 

 

Hi Vint,

 

 

If they suspect that you are unaware of your rights etc they will, more than lightky, chance it in court!

 

When they realise you know what you are talking about they tend to back off!

 

But they will then usually sell your accounts to a DCA and the fun starts all over again!!!

 

Just as long as you prepare yourself for what may happen and follow the fantastic advise posted on this site, you won't go far wrong!!!

 

But remember, there are no guarantees! Each Bank, Credit Card company and DCA are all different. So are the County Court Judges!

 

Just have a really good read around some of the threads and ask a few questions if your not sure of anything!

 

 

Best wishes, Jeff.

[vint1954]

Hi Gaz,

 

Don't have all of my statements, but around June 2002.

 

Vint

[vint1954]

Thanks Jeff.

[Gazza112]

Hi Gaz,

 

Don't have all of my statements, but around June 2002.

 

Vint

 

 

Hi Vint

 

Probably same time as when i took my card out with Halifax.

Take a look at my thread http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/159662-gazza112-halifax-credit-card-7.html#post2077980

 

If its anything like i received then its unenforceable.

 

Gaz

[vint1954]

Hi Gaz,

 

lets hope so. From memory it was from a "Pre approved" mailshot.

 

Have they gone to court with you yet?

 

Vint

[Gazza112]

Hi Gaz,

 

lets hope so. From memory it was from a "Pre approved" mailshot.

 

Have they gone to court with you yet?

 

Vint

 

 

Hi Vint

 

Not at the moment, put it this way if they take me to court with the paper that said this is my agreement. There be laught out of Court, and the judge won't be all that happy with them.

They sent me my Visa application, instead of my Mastercard agreement there pounding me for.

I think you might say [What a load of Plonkers]

 

gaz

[lunar jim]

The anoying thing is that I contacted all 3 CC companies as soon as I had been made redundant, but they chose not to help over the short term, so they have left me with no option but to fight back.

 

I know what you mean, I was plodding along on reduced payments for a couple of years until Capone got funny over one of Mrs Lunar's credit cards and flogged one of them to Robinson Way. Since I'd not delt with a DCA before I googled to find out what to expect and ended up here. As a result we've ceased payment on over half of our alleged debt due to either non-recept or faulty CCA's. This includes two more Capone cards.

 

So if Capone hadn't decided to be arsey they'd still be getting paid on the other two cards. And if Barclaycard and NatWest are reading; blame Capone for us not paying you (as well as yourselves lol)

[vint1954]

Spooky,

 

All has gone fairly quiet since sending CCA requests. Even calls have stopped?

 

Vint

[vjohn82]

You will find that... they are like buses mate... you wait for one then 3 turn up!

[vint1954]

Hi all,

 

Well the 12 days plus 2 are up and no CCA. ( Including extra time for Easter )

 

I have found what I see as the next letter ( below ) to send out. Can an informed member please comment on this, or is it too much at this stage.

 

Dear Sir or Madam,

 

 

Account no

 

ACCOUNT IN DISPUTE

 

Re: my request under the Consumer Credit Act 1974

 

 

 

Further to my request under the above act, your attention is drawn to the fact that this account is subject to a serious dispute. On 27/03/09, I requested that you supply me a copy of the credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

 

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing ( 12 working days + 2 ) to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement;

 

 

Clearly as no agreement has been supplied on request, this in no way complies with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in S.78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (3) Consumer Credit Act 1974 which states

 

127(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).

 

This is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 the agreement cannot be enforced.

 

 

To clarify S.61(1) states

 

(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

© 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

 

In addition the prescribed terms referred to in section 60 CCA1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—

 

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced..

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as you become compliant with my request. As you are still not in compliance with my request I insist that the following takes place with immediate effect.

 

All entries which refer to missed payments be removed from my credit file

All collection activities cease with immediate effect until you comply with my request from 27/03/09 or such time as a court makes an enforcement order.

In addition, I draw your attention to the Office of Fair Trading’s guidance on Debt Collection

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

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

 

What I Require.

 

I require that you send me a true signed copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well

 

No other correspondence will be accepted

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful

 

 

I trust this out lines the situation

 

Yours

 

Thanks

 

Vint

[vjohn82]

Doesn't look too shoddy that mate!

[vint1954]

Thanks Vjohn.

[GhostDebt]

Good letter, but I would be concerned about showing your hand to early.

Why tell them what the agreement should contain when they should know.. might make them do a photoshop bodge together job....

(I trust them not too ...... honest...)

 

We usually send the following to start with:

Account In Dispute

 

Dear Sir/Madam.

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

You have also Failed to provide any of the other documents requested.

On [date] I made a formal request for a true signed agreement for the alleged account. 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 alleged executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both the alleged creditor and myself as defined in section 61(1) of CCA 1974 and subsequent Statutory Instruments.

If the alleged 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 the alleged account should have been sent to me detailing all debits and credits to the alleged account.

Furthermore

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of an alleged 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 alleged agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the other 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 alleged account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the alleged account.

* You may not pass the alleged account to a third party.

* You may not register any information in respect of the alleged account with any credit reference agency.

* You may not issue a default notice related to the alleged 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 therefore request a copy of your official complaints procedure which you are obliged to supply.

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

Yours faithfully,

 

[Print do not sign]

 

and send recorded delivery obtaining a receipt as proof of postage and using track and trace to obtain proof of delivery.....

 

Have a think about it and send the letter you think is most appropriate.

 

Best regards

[vint1954]

Hi GhostDebt,

 

Thanks for the reply. Regrettably I sent the letter out on Wednesday, so they have it now.

 

Regards

 

Vint

[vint1954]

I have just received a response to my CCA request from Halifax

 

Apart from the usual covering letter, where they think that they have discharged their responsibilities, there was an up to date 8 page CCA which everyone seems to receive, with current T&C’s, using my current address and not my address in 2002, so I assume that this is irrelevant.

 

In place of a signed CCA, was a signed application form. Something fishy about this as the header and footer refer to platinum card application with a gold card logo and indeed it should be a gold card. The reverse is skewed and contains a competition and a small box ‘Financial and related conditions’.

 

This document is not signed by the creditor, not marked as approved, there is no credit limit, no mention of charges, no example of charges for credit, no reference to T&C’s and no T&C’s relating to 2002. The only possible prescribed terms are under ‘Financial and related conditions’ on the alleged reverse of the application.

 

An experienced opinion would be very welcome.

 

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