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Ace1

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  1. Any advice anyone please, had a reply from Halifax stating after sending the above letter to provide legible copy of the agreement, they stated 'the copies we have provided are the best available copies'

     

    what should I do now if they only sent be unreadable copies of the credit card agreemnet? Can they still enforce the debt? or do they have problems

  2. xxxxxx 2009.

     

    Dear xxxxxxxxx,

     

    ACCOUNT IN DISPUTE

     

    Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

     

    I write regarding recent communication regarding the above account. I acknowledge no dept to your organisation.

     

    Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute. On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed 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, supplying only an illegible document, devoid of all prescribed terms, and generic terms & conditions, which cannot be linked to any agreement which you claim that I have signed. 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.

     

    Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me, for pre 2007 agreements.

     

    Your letter dated 26th November is confusing. I suggest that you may wish to revisit this correspondence, bearing in mind the contradictory nature of its contents, also referring to the actual date that this agreement was allegedly executed. I would also advise that you fully read my correspondence to you, in relation to this matter.

     

    If the illegible copy document that you have provided, is all that is in your possetion, then you are bound to advise me of that fact.

     

    I am now granting to you a final 7 days to produce a legible copy of an executable agreement.After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt.

     

    Again, if you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

     

    I look forward to your response.

     

    Hello Guys,

     

    Had a recent reply from Halifax stating after sending the above letter to provide legible copy of the agreement, they stated 'the copies we have provided are the best available copies'.

     

    Whats next?

  3. Eyup

     

    It would guess that they haven't got another agreement but am hoping a court case would force them to produce whatever they've got, just in case. I stopped paying in October after they'd been in default of the CCA request for three months, they then defaulted it, told them it was disputed but passed to the debt collection agency anyway, whereupon I used the CAG template in corresponding with the DCA saying there was no enforceable agreement and suggested they pass it back to MBNA. But haven't heard since.

     

    I don't particularly have any worries about them taking me to court, fairly sure of my ground in terms of it being wholly unenforceable, just wondered if anyone had a template for me to counterclaim when MBNA take me to court.

     

    Cheers

    Claire

     

    It would be helpful if anyone could provide some guidance on this CCA issue and issuing a court order or counter claiming defence.

  4. They are daft. That is the only explanation.

     

    Point 1. The agreement is illegible. You want a legible copy.

     

    Point 2. They state that the agreement was executed post April 2007 and therefore cannot be irredemably unenforcable. Rubbish, it was executed October 2006, pre the point in April 2007 where a court could rule on enforcability of any agreement.

     

    You need to go back to them thumping home the fact that you want a legible copy of the agreement, or them to confirm that this illegible copy is the only one they have.

     

    Also point them to the errors of their ways regarding the date of execution of the agreement.

     

    Anyone got a drafted letter to send a reply to this New Page 1 - any help would be great

  5. Hello Vint,

     

    Thanks for the quick reply, do you have any letter template in mind that I can send them? I already had a SAR which they included the illegible agreement. I understand they are making daft points.

     

    HIYA THERE - I just drafted out a letter, can anyone check it out a advise if I shoud send this out.

     

     

    Dear xxxxxxxxx,

    ACCOUNT IN DISPUTE

    Re: Account Number xxxxxxxxxxx

    I refer to your letter dated the xxxxxxxxx which has been acknowledged.

    I like to point out an error to you that the agreement was not executed after 6th April 2007 the date upon which section 127(3) of the consumer Credit Act 1974 was repealed, as you stated in your letter. The agreement was executed in October 2006.

     

    You also stated in you letter that I appear to be requesting a copy of the ‘2nd and 3rd copy of the executed Credit Agreement’. Apparently this is not the case. I am asking you to send me a legible copy of the agreement as the one sent to me in the Subject Access Request; the DSAR Reference Number xxxxxxxxxx which I paid £10.00 was not a legible copy of the agreement.

    You have also admitted by saying that I am asking for a ‘2nd and 3rd copy of the executed Credit Agreement’. This clearly shows the number of times I have pointed out to Halifax that illegible copy of the agreement has been sent to me and the number of times I have requested you to send me a legible copy of the agreement request has still not been met under the pursuant to the Consumer Credit Act 1974 section 78.

    The agreement sent to me was illegible and I did attach this illegible copy of the agreement in the letter I sent to Halifax Customer Relations on xxxxxxxxxxxxxxxx. Instead you sent me a reply in your letter dated the xxxxxxxxxxxxxxx which does not make any sense. Sending me a illegible of the agreement does not compile you meeting with the request of the Consumer Credit Act 1974 as you stated in your recent correspondence.

    Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute.

    You also pointed out a list of some documents that were sent to me on August 28th 2009, to date you have failed to comply with my request, supplying only an illegible undated agreement, and generic terms & conditions, which cannot be linked to any agreement which you claim that I have signed.

     

    To date a legible executed agreement has not been supplied to me and whilst I appreciate Halifax has endeavoured to persuade me that provision of a copy of ‘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 legally permissible substitute for the provision of a true copy of the executed agreement which should be legible as required under section 78 as prescribed by regulation 3 consumer credit act, cancellation Notices and copies of Documents, regulation 1983.

     

    Your version of executed agreements and mine differ greatly as you seem to be relying on the amended regulations 1983 (s1 1983/1553).

    Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to Halifax, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974. You also stated ‘a signed credit agreement is only required when you seek to legally enforce the debt or take legal action against me’. I welcome you to take such action as soon as possible as I will counterclaim if it did go to that stage.

    IF YOU STILL REJECT THIS, PLEASE PROVIDE CLARIFICATION ON THE STATUS OF THE ORIGINAL LEGIBLE CREDIT AGREEMENT AND CONFIRM EITHER THAT YOU HOLD THE ORIGINAL SIGNED AGREEMENT ON FILE WHICH IS LEGIBLE OR A COPY OF IT ON MICROFICHE WHICH IS LEGIBLE OR THAT YOU NO LONGER HOLD A LEGIBLE COPY ON FILE.

     

    I am now granting to you a further 14 days from this letter to produce a copy of an executable agreement which is legible. Failure to supply this important document, I will consider that the above matter is closed. And please don’t send me a response that does not make any sense or does not answer my questions to this letter as you have done previously.

    If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be for you to resolve the issue by closing disputed account as soon as possible.

     

    Yours Sincerely,

     

  6. It is completely illegible, so no good.

     

    Send this and see what they say.

     

     

    xxxxxx 2009.

     

    Dear xxxxxxxxx,

     

    ACCOUNT IN DISPUTE

     

    Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

     

    I write regarding recent communication regarding the above account. I acknowledge no dept to your organisation.

     

    Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute. On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed 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, supplying only an illegible undated agreement, and generic terms & conditions, which cannot be linked to any agreement which you claim that I have signed. 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.

     

    Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me, for pre 2007 agreements. As you will be further aware, an agreement is not executed, until signed and dated by both parties, so the document that you have supplied, cannot be a True Copy of an Executed Agreement.

     

    While this account remains in serious dispute, the relevant main points of the Law and OFT regulations while the account is in this state and xxxxxx remain in default are:

     

    • You may not ask for payment against this account.
    • I am not obliged to offer any payment against this account.
    • You cannot register any data with a third party.
    • You cannot take any enforcement action, including registering Defaults.
    • You cannot pass the account on to a third party for collection.
    • You cannot sell the account.

    Let me explain here, what a true copy is:

     

    In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

     

    “The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

     

    Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

     

     

    I also refer you to the information below.

     

    1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

     

     

     

    2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

     

    In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.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. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

     

    2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

     

     

    Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

     

     

    I am now granting to you a further 7 days to produce a copy of an executable agreement.After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt.If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

     

    I look forward to your response.

     

    Hi, Thank for the letter - sent it today, will keep you posted in what reply I get.

  7. Hi Ace,

     

    To be sure one way or the other, it would be best to post a copy of your agreement here, having removed all personal details.

     

    If it is illegible, then it is basically useless and unenforcable. If they are admitting that they don't have a better one, then they have a problem.

     

    The agreement needs to be signed and date to be properly executed. It also needs to contain the prescribed terms within the signature document.

     

    Hello, thanks for the swift refply, please see link of the attached contract:

     

    New Page 1

  8. I had fraud on my halifax account. I am working overseas in Latin American, and normally have a local account, but due to a late pay day in September, I had to use my Halifax Debit card at a hire car company instead of the local one where my pay is deposited.

     

    The same month, I tried to hire a car with the same company but my card was not accepted. I should have realised then something was up. I checked it 3 days later and found that over 3 days in September, criminals have debited just over 1500 GBP from my account in a Total station in Europe (3 times) and what appears to be something to do with catering. I had fraud on the same account approximately 1 year previously and the halifax refunded the transactions after 1 month.

     

    This time they have informed me it will take up to 45 days because they have written off to visa to obtain the original sales vouchers from the merchant. The first time I spoke to them, they informed me it would take 30, then it increased to 35, now they're saying 45. It's crazy. I have no idea what this means or why they are taking so long to give me my money back . To rub salt into the wound, I have gone over the allowed overdraft and incurred many charges for each transaction, taking it in total to over 1700 GBP. Collections have been in contact and it is affecting my credit rating. I have a first class credit rating before this and am self employed, so this is is very bad for me.

     

    I feel like I am the one on trial, when the bank are clearly at fault for allowing this to happen but also for allowing it to go so far over the allowable overdraft.

     

    I'm worried they will try to say because of chip and pin its not our problem. I still have my Visa debit card that is cancelled within my possession. What are my rights - is it a matter of just waiting now to hear their 'verdict', why do they make me feel like I am the criminal here?

     

    What can I do and I am looking for other peoples experiences. I noticed one member of this forum had a similar problem and was paid back with 14 days after complaining, but because I am not a single mother with 3 kids to feed, it seems its ok to withhold paying me back, even though I do have a wife and baby to support and I am now stuck without my Visa debit card backup.

     

    Contact this person - he will help you. Has dealth with a case against Halifax. Chambers of Stephen Mason Home

  9. Hello Guys,

    Wondering if you could help. I been looking at CCA's and if how they are unforceable?

     

    First of all the bank has provided me a copy of the agreement but its unreadable. They say they don't have a readable copy.

     

    Secondly, the place where you sign on the agreement, theres no date? Is it unforceable?

     

    Hope to hear from you as I couldn't find these answers on this site. thanks

  10. Sorry, not aquainted with the Fraud Act. No doubt someone else will be able to answer that for you.

     

    So to confirm..... you haven't answered an email asking you to confirm or update any of your bank details?

     

    Hiya Rooster-UK, I wanted to know if the bank holds information regarding the account investigation on a customers account and doesn't provide information to a customer i.e. how they investigated the matter and not providing information on the security of their system knowing to me as I BELIEVE THEY ARE LEING TO ME regarding security on their systems to my disadvantage, can I file a charge against the bank under the Fraud Act?

  11. Go to the Financial Ombudsman Service first - three reasons:

    1. It's free!
    2. The Ombudsman will consider what is considered "fair and reasonable" not simply what the law says.
    3. If you don't like what the Ombudsman says, you can still go to court but not the other way round (though if the Ombudsman decides against you it is probably a fair indication that you have no case).

    I address complaints for a number of financial institutions and am aware of a number of cases which the FOS has reported finding against complainants but there are also some going the other way.

     

    Have a look at this link for an example of each.

     

    Thnaks for the information.

  12. You need to wait until the complaints process is over. You need to appear reasonable at all times and only be seen to be using the court process as a last resort. If you filed a claim while an investigation was still ongoing the court would not look favourably on your claim.

     

    Thanks Rory32, I will wait till the complaint process is over. Thanks for the advice. Can I ask when the Halifax is investigating a case, whom supposed to request the CCTV from the police, the Financial Institute OR the customer?

  13. Sorry, not aquainted with the Fraud Act. No doubt someone else will be able to answer that for you.

     

    So to confirm..... you haven't answered an email asking you to confirm or update any of your bank details?

     

    Hi Rooster-UK, I never got no e-mail from the bank asking me to confirm or update any of my bank details. I do get e-mails from Halifax but its only when they are advertising their special offers.

  14. Hi Rooster-UK, all my information on-line has been up to date for the past 2 years. One think I wasn't happy about was when this fraud was in the process, they didn't inform me, instead they increased my credit limit so the con-artist(s) can gain more...

     

    Can I ask one question, since the Fraud Act 2006 has been changed, does it mean the bank has to ask the police for the CCTV footages of when the fraud happened? Is this correct as the police told me this. But the Halifax Card Services are saying the total opposite, so I asked them to put it in writing, it might do me some favours when I file a Fraud Charge against the bank.

     

    Hi Ace.

     

    Can I ask you if, at any time, you have updated your account information, online, to the bank.

    This would be in response to an email.

     

    Regards, Rooster.

  15. Hi thanks for your information, I think i will or even might take them to court. I need to hang on and wait for their further investigation as they have responded to me today saying 'my complaint is being investigated', (I think they got my letter above) Well will keep you all informed.

     

    You really have two options then. You can either take them to court or allow them to take you to court and counterclaim. Defending a claim is in many ways easier than bringing a claim as the onus of proof is always on the claimant and you should be aware of this if you decide to bring a claim against them.

     

    That being said they would still have to demonstrate that they have properly investigated, etc. I would advise if you do decide to take them to court that you do it the old fashioned way and deal directly with the court e.g post the forms special delivery to the court or hand them in personally. The form you would need to fill in is an N1.

     

    You could do it via MCOL but as these are processed automatically it might just be seen as a bank charges claim, which are automatically stayed at the moment. Also I have heard of the occassional problem with paperwork not reaching the correct court when using MCOL.

  16. Here is a link to the FOS's complaints procedure our complaints procedure and how to complain

     

    Hi Rory, Thanks for the welcome, it wasn't a problem removing the other duplicate thread as it was submitted twice by mistake.

     

    Anyway thanks for the advice so far, I have been adviced not to go to FOS's as they have been favouring the banks on these type of cases past last 12 months.

     

    I have also spoken to someone regarding the outcome of this case from the 'Halifax Card Services', they said the financial ombudsman won't entertain this case and will decide for the banks on the 'cash withdrawal cases' as they say they can prove it was the original PIN and CARD? But won't tell me anything other than that.

    I have been advised to go via the courts. Any advice how I would do this would be helpful and should I go via the courts? What would you advise? I know 'mcol' is for claiming money back so I don't think I can do it via 'Money Claim on-line'. Any advice on further steps to sue this bank for not investigating the matter properly will be helpful.

     

    Thanks in Advance.

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