MTB v Halifax

[citizenB]

Fingers crossed they will back off.

[alamand]

Hi Guys

 

The court received and processed my defence on 30 June and they sent me a letter saying that Halifax had 28 days to reply.

 

It has now been 33 days and no contact from Halifax.

 

It just shows that there is one rule for the big guns and one for us, they have gone over their deadline, if we did that we would automaticly have a judgement against us.

 

They havn't replied to the full&final offer neither.

 

Regards

Alamand

[steven4064]

Alamand

 

I'm afraid that is just typical bank behaviour. And, yes, they will probably be allowed to get away with it

[alamand]

Hi Guys

 

Well its been at least 48 days since my defence was received, and I have had no correspondance from Halifax or the court.

 

Can anybody please tell me what I should be doing next with the court case, as it has gone way over the 28 days, that Halifax should have responded.

 

Does this mean that the case should be struck out of court, and if this is the case, should the court have informed me.

 

I am a bit confused now, because I dont know where I stand with the court case and I am uncertain of what my options are.

 

If somebody could please advise me please, I dont think there is anybody on here who hasnt received a reply from court or have waited this long to here something from the court(cant find a thread with similar circumstances).

 

Many Thanks

Alamand

[Hopeful1]

This is just a quick one as i'm on my way out.

 

In the 1st instance, ring the court as they will be able to tell you where things are at and what should be happening.

[car2403]

If there is no response from the Claimant once your defence is received after 28 days, the claim will be stayed. The only action the Claimant can then take, will be to apply to the Court to have the stay lifted. They would then have to explain why they didn't reply within the 28 days and seek permission to continue - I can't see why a Court would allow them to continue, as it makes a mockery of the whole system. (Having said that, I don't think I've seen that happen, so anything is possible)

 

Best way to find out is to contact the Court - you may have missed a letter they've sent to you, or something...

[alamand]

Hi Guys

 

Thanks Chris n Hopeful.

 

OH has just rung court and it has been stayed.

 

Just wondered now, when Halifax apply for it lifting, do they contact us, so we can object, or do they just apply and get it granted. After reading a couple of threads, it seems they always get them lifted.

 

Suppose its just a waiting game now even though Ithink its very unfair that they can totally ignore the law and get everything to go their own way, while we are not allowed to be late and have to stick to deadlines or we automatically get judgements against us.

 

Many thanks Guys

Alamand

[car2403]

As it's been stayed, they will need a very good reason for requesting it to be lifted. From what I know - but I haven't seen this happen yet - a Judge would give them a heck of a hard time for not acting quickly, but, depending on why they have delayed, would probably let them continue. You would have a chance to reply to that request to lift the stay, but, usually, in the interests of justice, the claim should continue...

 

It's a travesty, but this is the system we have to work with.

[alamand]

Thanks Chris

 

I have been reading loads of threads and it seems they always get them lifted without any problems(very unfair to normal, law-abiding citizens).

 

Just cant understand why they didnt respond( its not just 2 or 3 days late, its about 20 days late,so far) and why they havnt responded to F&F offer either. In fact no correspondance from them at all.

 

Guess we will find out soon enough.

 

Kind regards

Alamand

[alamand]

Hi Guys

 

Well Halifax have finally responded with this letter,

 

 

Could I please have some advise on how to reply to this letter.

 

1. Do I just reply with saying the application form is not poperly executed(but do not tell them the account no's on the application form are not the same as my account, as this would give them time to make one up and produce in court or do I tell them)

 

2. They sent the final response letter in reply to my CPR request. Should they have sent the final response letter before they started court proceedings.

 

3. They didn't reply to CPR request, they said they didn't need to.

 

4. The T&C's they sent with the final response are their current ones, not from 1990.

 

5. I also sent them a seperate F&F settlement offer, but they didnn't reply to that neither, should I carry on down that route as well.

 

There are so many questions I dont know where to start.I don't understand why they just didn't carry on with the court case, instead of now asking me if I want to still dispute the case.

They have also added £160 court fees on the debt, but they havn't carried on with court yet, its been stayed.

 

Thanks

Alamand

[car2403]

What have they sent "attached"?

[alamand]

Hi Chris

 

This is the attached letter

 

 

They have printed OH's name and want him to sign at the bottom. I don't think that would be a good idea as I have noticed on the application form that they have sent( after I put the defence in, missed it before I sent defence in), the account no's on the application form are wrong, plus there are 2 different acc no's on the form and they are both different.

 

Thanks

Alamand

[car2403]

Sorry, I wasn't clear on what I meant...

 

1. Do I just reply with saying the application form is not poperly executed(but do not tell them the account no's on the application form are not the same as my account, as this would give them time to make one up and produce in court or do I tell them)

 

Have we seen this application form on this thread? How do you know it isn't executed correctly? How is it improperly executed?

 

2. They sent the final response letter in reply to my CPR request. Should they have sent the final response letter before they started court proceedings.

 

Yes, but that is irrelevant now, as a Judge will say you've had it and should respond to the claim, etc, etc, even though they didn't send this when it should have been sent.

 

3. They didn't reply to CPR request, they said they didn't need to.

 

Technically, they don't have to reply until the Court orders them to anyway. The issue seems to be (now, anyway, from what you've posted - see 1. above) that they have now complied with the request.

 

4. The T&C's they sent with the final response are their current ones, not from 1990.

 

Which terms and conditions? Have we seen the application form and the terms on this thread yet? If the application form contains the prescribed terms, then it will be enforceable. If the application form doesn't, the debt is unenforcable and you have a complete defence to claim. (This is why I need to see the application form)

 

5. I also sent them a seperate F&F settlement offer, but they didnn't reply to that neither, should I carry on down that route as well.

 

Realistically, they were never going to accept/reply to this anyway - what you have done is, potentially, anyway, opened the door to having costs applied against them should you go on to win on the same or a less favourable basis than had they accepted it.

 

There are so many questions I dont know where to start.I don't understand why they just didn't carry on with the court case, instead of now asking me if I want to still dispute the case.

 

Seems to me they would rather you admit the debt, then they go to the Court and ask them to release the stay and accept your admission, than have to continue and ask for the stay to be released themselves. This is a sign of weakness, that we have rarely seen from this lot, which leads me to believe that the application form is unenforceable, they know it but don't want you to know it, and that they want an easy way out, other than taking you back to Court. I'd need to see the application form to say for definate, though.

 

They have also added £160 court fees on the debt, but they havn't carried on with court yet, its been stayed.

 

The can't enforce Court fees against you if they don't continue with the case. The fact they've chosen to ignore directions at this stage means they are unlikely to be able to get the Court to force you to pay them neither. All this is hence the reason for asking you to "admit" the debt - all very underhanded, if you ask me, but then look who we're dealing with...

[alamand]

Hi Chris

 

This is the credit agreement in post 1.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/146601-mtb-halifax.html#post1546603

 

I was originally told it was unenforceable when I posted it on someone elses thread, but when Halifax started court proceedings, I was told it was enforcable.

 

I put a defence in stating they hadnt responded fully to my CCA request and hadn't sent me a true executed credit agreement and the account was in dispute(I would plead ignorance or stupidity on my part, thinking an application form could not double up as a credit agreement as I was originally advised), and they hadn't responded to my CPR request, and put in the defence that, when Halifax responded to the CPR request, I would amend my defence.

 

After receiving help from everyone on here to put a defence in, it was then I noticed the application form had 2 different account numbers on it and both did not match the account number of the account that I am fighting.

 

Is it not that my argument now is, that Halifax have failed to reply to my CCA request and that the agreement/application form that they have sent,is totally unenforceable due to the fact that what they have sent is not the application form relating to my account.It has my details on it which proves I filled in an application form, but it does not have my account number on it, it has somebody elses on it, so it cannot be properly executed (hope that makes sense).

 

Thanks

Alamand

[car2403]

Is it not that my argument now is, that Halifax have failed to reply to my CCA request and that the agreement/application form that they have sent,is totally unenforceable due to the fact that what they have sent is not the application form relating to my account.It has my details on it which proves I filled in an application form, but it does not have my account number on it, it has somebody elses on it, so it cannot be properly executed (hope that makes sense).

 

Ok, let me deal with those other questions later, the important part of this, now, is;

 

Is it not that my argument now is, that Halifax have failed to reply to my CCA request

 

Why do you think they haven't complied?

 

and that the agreement/application form that they have sent,is totally unenforceable

 

The application form they've sent you has the prescribed terms for a credit card (credit limit, interest rate and payment details) so it is enforceable.

 

due to the fact that what they have sent is not the application form relating to my account.It has my details on it which proves I filled in an application form, but it does not have my account number on it, it has somebody elses on it, so it cannot be properly executed (hope that makes sense).

 

What does this mean? Is this the agreement you signed for this account when you took it out? Are those your personal details on it?

 

I wouldn't rely on the account numbers matching - IMHO, they will state that the account number is an internal method of recording/recalling your details and account information and has no bearing on the numbers referenced on the agreement. Unfortunately for many of us, the fact the parties are identified on the agreement would be sufficient for a Court to allow the debt to be enforced, for this reason - again, IMHO.

[alamand]

Hi Chris

 

I thought it was unenforceable at first because it was an application form.That was the advise I was given at first.

 

Yes they have the correct the personal details on.

I signed the application form.

 

So do I admit the claim now?

 

Thanks

Alamand

[car2403]

So do I admit the claim now?

 

Wooooowww hoss! One step at a time, kidda.

 

Ok, so we know you've been given incorrect advice (sorry about that, it sometimes happens on a forum as big as this) and that the application form is enforceable.

 

Why have they taken you to Court? Yes, I know, "because I didn't pay them", but why didn't you pay them? Have you been making any payments?

 

There is a simple way out of this, really - you write to them providing with some limited details of your income/expenses and offer to make a realistic monthly payment, if they agree to stay the legal proceedings while you do so. You can do this by a Consent Order or a Tomlin Order and the Bank will probably go for it as long as you can prove that's the amount you can afford and you will make payments. If they do go for it, you must ensure you make those payments, as they can just go back to Court and get a CCJ then force you to make payments. This way, though, they save on more Court costs and costs in preparing/attending hearings. Yes, you can admit the debt via the Court, but you'll still need to show your income/expenses to the Court and then you'll be told what you should pay. Using the Consent Order route, though, you'll avoid the CCJ so long as you comply with the Order. The key is getting Halifax to agree to it, so the more realistic the payments are, the more chance you will have of them accepting.

 

It's not always the way to go to admit debts via Court, as there is always another route available - however, when you're backed in to a corner and have no chance of defending successfully, (as it appear is the case here... sorry!) you should do everything you can to reduce the debt by making regular payments and avoiding costs along the way. The Consent Order is one way to do that.

 

What you will need to do, now then, if you want to do this, is write to them telling them you want to offer regular payments, in settlement of the Court proceedings, without having to go to Court - you should say you want to save on costs of having to attend, etc, etc. You should, ideally, send an income and expense breakdown, then say how much you want to pay on that basis.

 

I should warn you, though, that Halifax is a tough nut to crack - I've seen them take action that is wholly unwarranted in the circumstances. The issue you have is that they can do what they want - your letter needs to be "nice" and to the point, otherwise you'll lose them and end up with a CCJ.

 

On the other hand, a CCJ isn't the end of the world - in fact, admitting via the Court will probably result in a "Money Order", (similar to the Consent Order, but doesn't require Halifax's consent) saying how much you should pay and when - only if you break that Money Order should Halifax apply to have a CCJ issued, so you might be lucky.

[alamand]

Thanks Chris

 

If I write offering a payment through this consent/tomlin order, would interest be frozen?

 

If it went to court and i received a CCJ, at least interest would be frozen. I already have Defaults, so I would imagine a CCJ wouldn't make much difference.

 

Is there a template on here for draughting a letter regarding these orders.

 

Would it be also worth while offering F&F again and stating if they are not willing to accept, we will opt for admitting the debt in court and asking for the Money Order.

 

We have managed without credit for the last 6 years and dont intend to get any more credit in the future so a CCJ wouldnt be the end of the world, as you say.

We have managed to pay 5 of our debts off and we are left with 4 credit cards, 3 have definatly got dodgy agreements or none at all and this leaves Halifax, which is also the largest at £6k.

 

If we decide to admit in court, do I reply to their recent letter with, I deny the debt.

 

Many Thanks

Alamand

[car2403]

Interest would have to be frozen under the Consent Order. CCJ would be the same, also.

 

You could call the litigation team to discuss the F&F offer, then ask about the Consent Order if they don't accept it. If you can settle with a F&F payment, that would be easier. If they go for the Consent Order, I'd imagine that they will want to draft it and get you to sign it, return it to them and they will submit it to Court for sealing.

 

There's no template for Consent Orders as they are all different, depending on the individual case.

 

If you want to admit the debt, through the Court, there is a form you should complete. It's an N9A;

 

http://www.hmcourts-service.gov.uk/courtfinder/forms/n9a_0406.pdf

[alamand]

Many thanks Chris

 

Will get OH to ring Litigation team and see what happens. I suppose what ever happens, interest will be frozen and one way or another, we will see an end to this debt.

 

Kind Regards

Alamand

[Vulture_Bank]

At one point, a while ago, we were under the impression that an application form was not enforceable for the reasons you state. It turns out that that may be the case, but only if a contract was never executed afterwards - in that case the application form would not be evidence that a contract existed.

 

In your case, though, the application form is actually dual-purpose - it is an application form but it is also a credit agreement. Once it is signed, [can you explained why party you are referring to here , the applicant or the original creditor]it becomes the contract and is no longer 'pre-contractual'

 

any update on this thread

 

have been reading it but have noticed that the two halves of the document on post 1 do not fit together properly , part 1 has the start of a signatory box for the creditor, but it does not show on part 2

[alamand]

Hi everyone

Hope you all had a good xmas.

 

Just to update you all, I negotiated a partial settlement with Halifax at 45%.

I have just received their letter stating they had received my payment and that they had closed the account and no further action will be taken and that they would update my credit file accordingly.

 

Would just like to say a big thankyou to everyone especially all those who guided me through this time. As I have said all along, Idid not want to get out of paying my debts but just wanted to be treated fairly and not be conned.

 

A BIG BIG THANKYOU

 

Alamand

[car2403]

Well done - you've done well to avoid the pitfalls of Halifax's collection techniques here, IMHO.

 

Did they agree to remove the CRA data, or just mark it as settled/satisfied, in the end?

[alamand]

Thanks Car

 

They just marked it as partially settled.

 

I am not planning on getting more debt, so I am happy with that.

 

Kind Regards

Alamand

[citizenB]

As long as you are happy with the result then this is good news. This was a Full and Final settlement wasnt it ?