HBOS and OH's card debt

[lexis200]

Hi

 

I've just printed out the CPR request letter, but I have a couple of questions.

 

First, I've realised the S.A.R - (Subject Access Request) wasn't actually requested from them - when I told them the application wasn't any good for the second time, they sent the same one a third time along with a load of statements and current t's and c's (freshly printed). I got confused as I've got SAR's going left right and centre at the moment! Anyway, I've just removed the 'and the Data Protection Act 1998' bit from the first main para. Is that OK, or should I have also requested the agreement under an SAR?

 

Secondly, as I'd obviously rather avoid court for OH (although I do fully accept this is a possibility), where it states 'In the event that your client should fail to comply with my CPR 31.14 request, I will not hesitate in making an application to the court for an order that further proceedings...', could I amend it to something like 'In the event that your client should fail to comply with my CPR 31.14 request, but still continues court proceedings, I will not hesitate in making an application to the court for an order that further proceedings...'

 

Whilst that gets a look over (hopefully!), I'm getting on with the absolute mountain of letters I need to write! Then I need to find out about claiming back all the bl***y postage costs I'm having to fork out:mad:

[lexis200]

excellent - thanks to both of you:D

[lexis200]

I do have one other query...

 

I've checked statements going back to '98, and charges with contractual compound interest all but wipes out the balance. I'm wondering if there's anywhere I can go with this?

 

-Can you claim back further than the 6 years - ie to the first charge in '98?

-Could I use this as leverage with them?

-If, as the agreement is not enforceable, I eventually manage one way or another to get the balance reduced to £0, could I then claim back the charges, or is it a one or the other type situation?

 

Thanks again

[lexis200]

Ok, so if I'm understanding this correctly, I could have a punt at claiming the lot as long as we weren't in court, and it may or may not work. If however it does go to court, anything above the 6 years would very likely be contested, but the charges within the last 6 years could at least go towards the balance (that is assuming the verdict didn't go in our favour).

 

But, if it went to court, did go in our favour, and the agreement was declared unenforceable, would that null any possibility of reclaiming afterwards?

 

What I really need to know though is should we even be considering claiming when we're going along the unenforceable route? I'm very confused with this whole area as there seems to be a different thought on it every time you look. Also, I've never made a charges claim before - it only occurred to me yesterday when I was flicking through OH's statements, so I have no idea what I'd be getting myself into if I did go ahead with charges!

 

As always, thanks for your help!

 

ps - cheers CB:)

[lexis200]

Lexis,

The answer to your query in post no69 is whether you are defending by seeking to set off against the amount claimed a sum of money which is due to you, or whether you are counterclaiming for it. I won't go into the niceties of set offs right now, but it seems to me that a set off is available to you in this case since the charges and contra charges arise out of the one agreement. My brain hurts already!

Another way of looking at it is like this. Suppose a bloke I'd lent £100.00 to ten years ago sued me for £50.00 owing to him by me from three years back. I could theoretically defend the entire claim by saying the £50.00 I gained was in part satisfaction of the debt created ten years ago and I don't owe him a bean. On the other hand I could not counterclaim for £100.00 because my counterclaim would be met with a limitation defence. I think you're saying that if they took OH to court, we could say something along the lines of 'you've had 10 years of dodgy charges, we want them back, then you can consider going after the balance'. This would be used as a defence to put them off going ahead, or to limit the damage if they did??

If however we were to just dispute the charges as a normal claim, they'd be more able to dispute the earlier ones

Is the penny dropping? erm, you tell me - have I got it right this time?

 

In short, my suggestion is to employ all (ie from inception of the agreement) excessive charge arguments as a defence by way of set off. I wouldn't bother counterclaiming. So don't bother going for charges unless they take OH to court and it's as a defence tactic?

 

I hope this helps and is not getting overly complicated! No no, if you whack me with information enough times it does eventually go in. Usually:D

 

x20

 

CB - I have done the OFT complaint letter - one regarding BOS and one for BlairOS (not sure if it should be just about one of them or both, seeing as they're both employing the same tactics and holding to the same lines). They're ready to go.

-I've sent off the form etc to the Information Commissioners Office about the state of the envelope and the visible contents.

-I've printed out yours/x20's letter and that's ready to go too.

 

Now I just need to do the FOS complaint about BOS since they've given their final response (that looks like an all nighter so I'm planning that for the weekend!), and the response to BOS so that they can't claim they didn't know what was going on.

 

I did the spreadsheets yesterday evening, that's what sparked my questions:D I wasn't in a letter drafting mood so I did a bit of brainless data input work instead;)

 

Now I need a cup of tea and a biccie - I made some shortbread yesterday and it's calling me...

[lexis200]

Ahh, well I didn't think of putting both in one letter did I:rolleyes:

 

I'll get that amended - at least it'll be one less postage cost to pay; that's fast becoming our major expense through the month. If I have to do another I/E form for anyone I think I'll include that on it:D

[lexis200]

Okay

 

Quick update on this...

 

I sent the dispute letter in October, outlining the lack of prescribed terms, illegibility etc. They received this on the 10th Oct.

 

So far I've heard diddly squat from them - they haven't even updated the address, which they have been informed of twice now.

 

The thing is, so far OH has carried on with payments - should I get him to stop them to try and kick them up the bum a bit, or do I give them a chance and tell them if they don't reply, payments will be stopping on X date?

 

I think I should be making this a formal complaint to them now anyway as they haven't answered the account in dispute letter from a month ago, and haven't changed the address despite being told we do not live there any more.

 

Any ideas from anyone would be appreciated:)

[lexis200]

I'm a bit confused with my paperwork!

 

I sent a 'no cca received' letter to BlairOS on the 7th October stating all the usual bits about unenforceable unless one is produced etc.

 

On the 17th OH received the above form from BlairOS along with a compliments slip.

 

Around the 28th OH received a letter from Halifax stating they are 'sorry to learn of your dissatisfaction at our apparent failure to provide the documentation you requested under section 78 etc... Whilst we are in breach of your request we may not enforce the agreement, which means that we cannot take court action or force you to pay. We can continue actions that are not deemed as enforcement.' etc etc.

 

On the 30th I sent the above letter to BlairOS about the lack of t's and c's etc.

 

On the 7th November OH has another letter from Halifax saying they're still looking into the complaint, sorry it's taking so long, and we'll have an answer for you by the 4th December.

 

Any ideas what the hell is going on anyone?? I'm kind of getting the impression that it's a complete shambles in the Halifax/BOS court, and they have no idea what each other are doing. Is this likely to be the case, or can anyone read something else into the oddness of these timelines and responses?

 

Just to confuse them a little more I SAR'd them on the 6th, so that'll probably send them into some sort of meltdown:D

[lexis200]

Hello!

 

Still working on the FOS complaint - 'real' work and family stuff is getting in the way:(

 

I'm just being a bit cheeky too and posting a link to my BOS thread, and my Cap1 one, where I could do with a bit of advice....any takers?

 

http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/160990-lexis200-bos-take-two.html

 

http://www.consumeractiongroup.co.uk/forum/capital-one/164241-lexis200-capital-one-cca.html

 

Thanks:D

[lexis200]

Just done a covering letter to BlairOS about the NIP - almost entirely ripped off from CB's earlier post, thanks:D (sent off the scary CPR one last week:eek:). Can anyone just give it a once-over before I print please?

 

Your letter dated 23rd October was received by me on the 30th October.

 

As both your company and the Bank of Scotland have failed to supply me with information requested under the Consumer Credit Act 1974, and have attempted to mislead me into believing it complies with your obligations under the Act, this has left me with no option but to make a formal complaint to the Financial Ombudsman Service.

 

Your letter will be passed to the FOS to aid their investigation.

 

Please also find enclosed a copy of a letter I have today sent to the Office of Fair Trading regarding your conduct. The letter is self explanatory.

[lexis200]

Lovely, thanks CB.

 

I have another one for you now:D This is just to hbos as a general gripe - not for any response, but so it's in black and white what my issues are.

 

Then I really have to do some work!

 

Thank you for your letter dated 30th October, received by me on the 31st October.

 

I am responding to your letter only as a courtesy to let you know how I will be proceeding, as the response you have offered is far from satisfactory.

 

First, with regards to my details arriving in a poor condition. The envelope may have left your offices in reasonable condition, however, it could well be expected that if you send a standard paper envelope through the postal system, when it has been tightly packed with documents, that it will suffer due to that. Your company should employ a stronger container when you are sending personal and financial information. To assert that Post Office staff must sign the Official Secrets Act is nonsense, as my concern is not that they would talk about it to friends and family, but that it can be used to find out a significant amount of information about me. I am positive that you would not be happy to leave similar documents with your information on in full view in the Post Office, regardless of staff signing the Official Secrets Act or not.

 

This lack of security and your consequent disregard of my concerns have been passed on to the Information Commissioners Office.

 

Secondly, with regards to the ‘agreement’. You assert that an illegible document, with no visible prescribed terms on it, and with a set of current terms and conditions, complies with your requirements under the Consumer Credit Act 1974 (the Act). This is simply not true, and your comment about this being ‘clearly explained’ in a previous letter is at best atrociously patronising, and at worst intended to mislead me into believing the document you have sent fulfils the remit set by the Act.

 

You also wrote that I have stated the copy was illegible, and you can send out another. This would obviously be a pointless exercise, as to date you have sent me three copies of the same illegible application form. I highly doubt sending it again will suddenly cause it to be legible and compliant.

 

The lack of a compliant agreement, your attempts to mislead me, and your handling of my concerns in general is being escalated into a complaint to the Financial Ombudsman Service.

 

The third point I must raise regards my details held with Blair Oliver and Scott. The lack of a compliant agreement prohibits the passing of my details to any third party. Without a signed, legible agreement, complete with all prescribed terms and details of Data Protection, you do not have now, nor have you ever had my permission to pass on my details. I therefore reiterate that my details must be removed from their system. Is there any Act etc I can quote here?

 

You also state the account is not in dispute. The lack of a compliant credit agreement is a very clear dispute, and as such you may not enforce the debt, nor am I obliged to offer you any payment until the matter is resolved.

 

If this is not a clear enough dispute, then you will be aware that my complaint to the FOS also puts the account into dispute. Either way, you may not add charges or interest to the account, or place any markers regarding the account with any Credit Reference Agencies. Can I also put something along the lines of ‘similarly, any markers already placed should be removed, as you have not ever had the right to place them’?

 

I am aware your last response was the Bank of Scotland’s final decision, so I will reiterate that this letter is merely a courtesy.

 

I would though also like to make mention of the many grammatical and punctuation errors contained within your response. This in itself suggests a lack of interest in my case, as you do not appear to even take the time to proof-read your letters before sending them out. It also does not help at all with my current view of your company in general. As a professional company these sorts of mistakes should not occur.

[lexis200]

Okay, just told OH to stop the payments. And I'll consider my wrist slapped:)

 

The only reason I didn't was cold feet - I completely copped out:oops:

 

I'll get another complaint out to them and merge what the two of you have suggested in it, then I expect go down the same route as with the other one you've been helping on! At least I'll have some letters ready done for them:)

 

Cheers

 

Lexis:)

[lexis200]

Seeing as my cheekiness with my other posts worked so well, I thought I'd drop in my newest - my own personal bugbear, the co-op...

 

If you're not too busy, I'd be very glad of a more experienced opinion than mine from anyone:D

 

http://www.consumeractiongroup.co.uk/forum/cooperative-bank/168075-lexis200-co-op-cca.html

 

Lexis:)

[lexis200]

Thanks very much for that quote, the amended letter is printing as I type!

[lexis200]

Okie dokie

 

Everything barring the FOS complaint is done and ready to go. Hopefully I'll have time to get it done this weekend, but the way things are shaping up at home it may have to wait a bit longer.

[lexis200]

This is going out tomorrow (today actually!) if you lot give it the green light!

 

It's really just a covering letter as I'm copying them the one I sent last month, so I don't want to be bothered writing the same things out again.

 

Lexis

 

FORMAL COMPLAINT

ACCOUNT IN DISPUTE

 

I wrote to you on the 7th October, and my letter was signed for at your offices on the 10th October. To date I have not had the courtesy of a reply regarding the illegible document you sent as a response to my legal request under the Consumer Credit Act 1974 (the Act).

 

The document you sent does not in any way satisfy your requirements under section 78 of the Act, and as such you still remain in default of my request, and the account remains unenforceable. I have enclosed my previous letter for your convenience, as it explains fully my reasons for coming to this conclusion.

 

I also asked you to confirm your statement ‘Please note that the information we have provided you with is all the information we are able to provide you with Under Section 78 of the Consumer Credit Act’. Again, I ask that you confirm you do not hold a compliant signed agreement relating to this account.

 

I also informed you that the address you hold is incorrect, and you should now be using the one above. You are still sending statements to the old address. This is unacceptable.

 

I must advise you now that until this dispute is settled to my satisfaction, no further payments will be made to this account. I am within my rights to withhold payments whilst the account remains unenforceable and you remain in default of your duties under the Act.

 

I would ask that if it is not your intention to fully investigate my complaints, that you advise me of your final response at the earliest opportunity in order for me to escalate my complaint to the Financial Ombudsman Service.

 

Also, please ensure you enclose a copy of your standard complaints procedure so that I am aware of the timescales afforded to you.

I look forward to your prompt reply.

 

Edited November 13, 2008 by lexis200
forgot to paste letter:)

[lexis200]

Just checked RM and the SAR only got to them on the 10th, by 1st class post. How irritating:mad:

[lexis200]

Okay, I think the letter above crossed with their one, below.

 

'Thank you for your letter dated 7th October.

 

At present we are unable to provide historic terms and conditions for the above account. Should these become available in the future we will forward them to you.

 

We are not obliged to provide all 3 items that you have requested. Therefore the copy application form and the current terms and conditions sent to you together with our covering letter dated 16th September fulfil the request made under section 78.'

 

Am I right in reading that they're screwed?

 

They have no historic terms, they sent an illegible application with no prescribed terms, and they are stating that they don't need to send the '3 items' I asked for. This in itself has confused me a little, as I've read through both the CCA request, and the subsequent letter informing them it wasn't acceptable, and neither mentions 3 items, only the agreement and the terms. I think this is them knowing they're meant to send the agreement, the original terms and statement of account, but knowing they haven't complied and trying to do a bit of damage control.

 

Do I just need to write and get their final response now so that I can take this further, as we're obviously going nowhere fast? Or, can I do a letter intimating that as we both know the debt is unenforceable, they'd do best to zero the balance and remove any data, then if that doesn't work taking it further?

[lexis200]

Hi CB

 

I'll have a look, but the letter was received by me on the 14th/15th, so they'd have had to work pretty quickly to get one out on the same day. Mind you, it was very short so anything's possible...

[lexis200]

Okay, reply received from OFT. As expected, they can't do anything, but I'm actually quite impressed with the letter. They do seem to be trying to explain things clearly, and also, it appears to give very helpful information which I'm sure can be incorporated into correspondence to aid us!

 

They cover what must be included in a 'true copy', and that the bank/owner has no recourse through the courts if it's not up to scratch.

 

They also state

 

We note your concerns that in the absence of a copy of the original agreement someone's liability for a debt can only lead to further query. However in circumstances like this we would view it as unfair practice under section 25(2) (d) of the Act and relevant to licence fitness if a trader failed to investigate and/or provide details as appropriate when a debt is queried or disputed.

 

that section is this btw - engaged in business practices appearing to the Director to be deceitful or oppressive, or otherwise unfair or improper (whether unlawful or not).

 

 

All things considered, I don't think it was a bad response. Not helpful per se, but certainly appearing to be written in order to help rather than fob off.

[lexis200]

Also

 

No reply to CPR request, however we have been getting calls from Robinson Way. I thought this was in relation to MBNA, but apparently it's this account.

 

OH has now had a

 

FORMAL DEMAND FOR PAYMENT from them (that's their caps, not mine:))

 

HBOS have authorised us to recover the full amount you owe, shown above. This is a formal notice of intended court action. We may take action unless YOU PAY THE FULL AMOUNT YOU OWE WITHIN 10 DAYS OF THE DATE OF THIS LETTER. (dated 18th, sent 2nd class, got here yesterday).

 

If court action is taken and a court considers your failure to pay to be due to your refusal or neglect to pay, an order for repayment may be made...This problem account will not go away or be forgotten - it makes sense to pay now (that really reminded me of Only Fools and Horses - you know it makes sense Rodders:D)

 

Would I be right in thinking I'm now Bemused? If so, am I bemused with Robinson Way for writing, or with HBOS for passing it on?

 

I'd like to get a letter out to whoever needs one asap, so any help as always much appreciated.

 

Thanks

 

Lexis:)

[lexis200]

I seem to have thoroughly confused Blair Oliver Scott:D

 

I sent the 'CCA is illegible' letter to them on this account a while ago, including in it the fact that they sent a set of freshly printed terms with an old address on them.

 

On the 15th OH received another set of terms, this time with our current address on them (still not the one we were at when the account was opened:rolleyes:), but they've sent it with the Halifax agreement we had a while ago, which appears to be enforceable.

 

Bunch of absolute brainless t***s. And it ruins my filing - do I put it with the Halifax stuff or the HBOS??? Dammit, it was all so neat before.

 

I'm just wondering if I need to address this to them?

[lexis200]

oh bugger. And I thought I was special:rolleyes: I had the form too...

[lexis200]

Aah, you want to send it by post Magda, then you get the form;)

 

How about this....

 

Your formal demand, dated 18th November, sent 2nd Class, reached me on the 22nd November.

 

Quite apart from the fact that I have not had any form of a Notice of Assignment (or similar) to inform me of your involvement, I was rather surprised to have received this from you, having received one just like it from Blair Oliver Scott on the 30th October. I enclose a copy of the letter I sent them for your reference; this was received by them on the 10th November.

 

Perhaps they neglected to mention that to date HBOS have been in default of my section 78 request under the Consumer Credit Act 1974 since June, and that the account has been in dispute since.

 

As you are aware, while my legal request remains in default, enforcement action is not permitted; under s127 this constitutes a complete defence at law. Consequentially any legal action you pursue will be averred as both unlawful and vexatious.

 

I would respectfully suggest that this account is returned to HBOS for resolution of these defaults and breaches, as you cannot lawfully pursue any enforcement activities.

 

Any further correspondence from you, save to inform me of you passing the account back to HBOS, will simply be added to my FOS complaint, as you are already in breach of many OFT guidelines on Unfair Business Practices.

 

It's a combination of your suggestion CB, and a letter I found by the other CB (CurlyBen:))

[lexis200]

Thanks CB - didn't work though:rolleyes:

 

Just had another 'our client has instructed us' etc from RW.

 

I've knocked this up

 

I DO NOT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY

OR YOUR CLIENT

Dear Sir

Your ref: 726413100

Thank you for your letter dated 30th November, which I received today.

You have already been informed in writing and on the phone that I have not received any Notice of Assignment from HBOS regarding this account.

HBOS are currently in default of a Section 78 request under the Consumer Credit Act 1974, my legal request for information following the threat of court, the account is in dispute, and they have breached my section 10 request under the Data Protection Act with regards to data processing. They are also in breach of many OFT guidelines, as are your company.

Notwithstanding all of the above you will of course be aware I have absolutely no intention of paying money to you or anyone else who can not prove they own the alleged debt, or indeed that I owe it.

The only correspondence I expect to receive is acknowledgement you are not pursuing this. I suggest you do not write to me again regarding anything else, otherwise your next letter will be used as evidence of harassment in a complaint to the Police? and ?. (not sure who I can actually complain to, so any prompting is welcome:D)

 

How's that one? Can I get it off to them or do I need to amend much?

 

 

Thanks

 

 

Lexis:)