Regarding the Halifax CCA details sent by Cabot (see previous thread for redacted document).
I sent them the following letter:
I have now had an independent review of your letter and documents dated 23rd January 2017 in which you
claim that this account is enforceable.
The document provided:
The document provided is not complete. Page 1 refers to signing the agreement on Page 3. The alleged
agreement in your submitted version is actually the second page. The Prescribed terms are also not complete
in the document.
You will be aware that pre-April 2007 agreements cannot be enforced with a reconstituted agreement. Only a
certified true copy of the original in its entirety can be considered, and only if it meets the requirements,
otherwise it still stands as unenforceable.
The document that you are obliged to send me is a certified 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
the original company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments.
It was not stated that these were reconstituted T&C as required by the CCA 1974 Act 13.1.4(2)
The reconstituted Terms and Conditions that you sent are clearly unrelated to the alleged agreement, and
whilst that may satisfy a CCA request, it would not be acceptable in any legal action - only an original
document would suffice.
The alleged agreement makes no mention of Terms and Conditions and I never received Terms and Conditions.
The document refers to my right to cancel the agreement - Halifax never sent these details.
The court cannot make an enforcement order in respect of a pre-April 2007 credit card agreement unless a
document containing all the prescribed terms was signed by the debtor (section 127(3) CCA 1974).
The “prescribed terms” which must be contained in the document signed by the debtor are set out in Schedule
6 to the Consumer Credit (Agreements) Regulations 1983 (“the Agreements Regulations”) :
The Agreement must contain a Credit Limit, or a reference that the Credit Limit will be set at a later
date, or a statement that no Credit Limit is required.
The Agreement must declare the APR% rate, monthly and/or annually.
The Agreement must contain a date/or indication of a date such as weekly, monthly or annually, for
payments to be made, or state a date will be decided upon later, or that monthly statements will be
provided to show the date of required payment.
The Agreement must contain a notice of your right to cancellation - usually 14 days from the date
or a condition that it may not be cancelled under the Act and/or various others.
The Agreement must contain ALL Terms & Conditions.
The agreement must be legible, and the type face distinguishable from the background colour.
The Agreement must be signed by both parties - Debtor and Creditor/or their representative and dated.
Any copy of the Agreement lawfully requested by the debtor under section 78 of the Consumer Credit
Act 1974, must be a valid and true Certified Copy of the Original Agreement - in this instance,
reconstituted agreements are not valid, true copies and unacceptable.
ALL of the above, must be contained within a single, signed document and parts may not be sent
separately, or issued under separate cover.
If any of the above is not included, or if the Agreement is not legible, then the Agreement is unenforceable at
ALL prescribed terms need to be within one signature document and it needs to be obvious that it is all a
contained document or if any other documents referred to in the main agreement, they must be supplied.
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”.
Clearly the application document supplied lacks the Prescribed terms within the document, and is therefore
improperly executed and irredeemingly unenforceable by any court by virtue of section 127(3) CCA 1974.
It is not sufficient for the piece of paper signed by the debtor merely to cross-refer to the Prescribed Terms
without a copy of those terms being supplied to the debtor at the point of signature.
It is considered that the debt is unenforceable in a Court of Law for the reasons given above.
I am advised therefore to discontinue payments on this account.
They have replied:
You assert that we have failed to comply with the duty to provide information as set out in s78 of the Consumer Credit Act 1974.
You believe that on Cabot reference ..... all the terms and conditions are required to be on one document and that a number of prescribed terms are omitted from the documents sent.
I also understand that you believe reconstituted agreements are not valid for accounts opened prior to 2007.
You have stated that page 1 of the agreement refers to signing an agreement on page 3 and we only sent you page 2 of the agreement.
On review I note that we are still currently waiting on documentation for Cabot reference .. (Lloyds TSB) to fulfil your CCA request.
You were advised of this in our letter dated 28 March 2017.
This account currently remains on hold.
On Cabot reference .... (Barclaycard) you were advised on 28 March 2017 we could not obtain the documentation and the account was unenforceable.
We have taken the decision to cease collection on this account.
As advised in my previous email I referred your further concerns to our Compliance Department for further investigation for Cabot reference ... (Halifax credit card).
On 23 January 2017 my colleague wrote to you and you were provided with:
1. A legible copy of your Signed Credit Agreement
2. Terms and Conditions
3. Varied Terms and Conditions
4. Statement of Account
On review of the credit agreement sent to you it is clear that there are no page numbers shown on the copy provided.
However, what has been provided is clearly entitled
‘CREDIT CARD AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974’ and has been signed by you, Mr ..... on 27th October 2005.
I have enclosed a further copy of the original signed credit agreement with all relevant prescribed terms highlighted for ease of reference.
Please be advised the file is encrypted and I will send the password in a separate email.
The relevant prescribed terms are as follows:
§ Nature of the agreement (Title as referred to above)
§ Parties to the agreement (Name and address of creditor and borrower)
§ Credit Limit
§ Total Charge for Credit
§ Timing of repayments
§ Amounts of repayments (at least 2% or £5, whichever is more)
§ Variable rates or items (statement that in calculating APR no account has been taken for varied rates and an indication that any change to interest rates will be communicated by giving notice.)
§ Charges on default (Charges to be applied in the event of failure to make minimum payment, exceeding credit limit or failed Direct Debits, cheques or other items)
We supplied you with a copy of the original credit agreement that you signed, accompanied by two sets of reconstituted terms and conditions.
The first set of terms and conditions have been provided by Halifax as those that were in force at the time you entered into the agreement on 3 November 2005 and the second being valid when the account defaulted on 7 July 2009.
We therefore believe your comment that a reconstituted agreement is not sufficient to satisfy a request under section 78 of the CCA where the agreement pre dates April 2007 not relevant to your case.
Your comments regarding the signed credit agreement are noted however, there is no requirement in relation to the location of the creditor’s signature on a credit agreement.
It has also been found in legal precedent, that any writing, including the writing of the account number by the creditor on the credit agreement, with the intention of authenticating it, is sufficient.
This has been confirmed by Morton v Copeland (1855) 16CB 517, per Maule J at 535 and Hill v Hill  Ch 231 per Morton LJ at 40. With respect I draw your attention to the enclosed copy of the signed credit agreement where Halifax has clearly stamped the date ‘received 1 November 2005’.
The signed statement of account is accurate.
The Agreement was terminated on 7 July 2009 and you became liable for the full outstanding balance.
You are not able to draw further on this account.
For the avoidance of doubt, the sum of £11,151.68 is due and payable to us.
I consider that we have complied with your request in accordance with s78 of the Consumer Credit Act 1974.
Therefore we consider that the agreement is now enforceable.
As the account is enforceable it has been returned to our collections process.
Please be advised Cabot will not respond further to any issues already addressed.
Appreciate this is a bit of a long one - any further comments/advice? Thanks