CCA from Halifax valid ?

[darknight]

Hi,

 

I have received a CCA from Halifax. Please can someone have a look to see if it is properly executed with all the prescribed terms on it. It is only a photocopy of the application form. They have printed out the current terms and conditions and sent those as a separate document with the copy of the application form. I know the T&C's they have sent are the current ones, as they state that the charges are £12. The credit card was taken out in 1992.

 

Can they send out the T&C's separately like this, or do they need to be part of the CCA ? On the application form, it refers to the terms of the agreement as set out overleaf. However, overleaf it is blank, as it is a photocopy.

 

I am attaching the application form they sent me as a CCA.

 

http://i440.photobucket.com/albums/qq126/darknight_man/Halifax%20CCA/scan0001.jpg

 

http://i440.photobucket.com/albums/qq126/darknight_man/Halifax%20CCA/scan0002.jpg

 

Also attaching the first page of the current terms and conditions they sent. It is a 8 page document.

 

On the first page which is attached, in section 1. Parties, they have got my current address, which is different to the address when I applied for the credit card.

 

http://i440.photobucket.com/albums/qq126/darknight_man/Halifax%20CCA/scan0003.jpg

 

Many thanks.

Edited January 1, 2009 by darknight
taking out blank spaces

[mikek]

For credit cards (because their terms change) they had to send you the original terms and the current terms.

 

In the original form all prescribed terms and signature are present. However the interest rates + APR are incorrect.

 

The agreement is fatally unenforceable.

Edited January 2, 2009 by mikek
corrections in the text

[Ragtaggeorge]

For credit cards (because their terms change) they had to send you the original terms and the current terms.

 

In the original form all prescribed terms and signature are present. However the interest rates + APR are incorrect.

 

The agreement is fatally unenforceable.

 

Yes, here is the regulation for APR nowhere does it mention 'variable' Also there is no initial credit limit specified so it would also be unenforceable for that reason i.e. a missing proscribed term.

(6) The APR referred to in paragraphs 15 to 17 of Schedule 1 to these Regulations shall in documents embodying regulated consumer credit agreements, other than exempted agreements-- (a) be denoted as "APR" or "annual percentage rate" or "annual percentage rate of the total charge for credit; and (b) where it is subject to change, be accompanied by the word "variable".

Consumer Credit (Agreements) Regulations 1983

[darknight]

Thanks for the replies. I feel better already.

 

Just a clarification on the initial credit limit. I was reading somewhere that for a credit card agreement, because the credit limit can be variable, they can put something to the effect that "The society will determine and notify you of the credit limit from time to time". Does the CCA need a specific initial credit limit ?

 

With the interest rates, you are saying that the word "variable" is not in the agreement, so it is unenforceable ?

 

The current situation is that Halifax have issued a county court claim.

 

The events so far as below :

 

1. Halifax issued county court claim

2. I sent off CCA request and CPR part 18 request

3. Nothing was sent back, so I filed my defence saying that no CCA was provided under the CCA 1974, and that information for the part 18 request was not provided.

4. Then I was sent the copy of the CCA I have put on here and a statement of account.

 

The 28 days to submit the defence was on 07 Dec. Halifax have 28 days to respond to the defence. If they do not respond to the defence within that time, what happens to the court claim ?

 

How can I respond to Halifax, telling them that the CCA they have provided is unenforcable by quoting the relevant laws. A sample letter would be much appreciated.

 

If it is brought to their attention that this agreement is unenforceable, would Halifax, continue with the court action ? Wouldn't they be just wasting their time ?

 

Many thanks in advance.

[guzzleguts]

Hi darknight

Just a note of caution, if they have the original which they will need to enforce anyway,that might have the missing prescribed term overleaf(hopefully not but worth considering).

 

As you are already at court stage you need some of the experienced guys to give advice so hopefully BRW CCM OR ANDY will pick this up.

 

GG

[Ragtaggeorge]

Yes, you need to start a thread in the legal issues thread titled something like, 'court date looming Halifax'. Yes, the word is 'prescribed' (bloody legalese) sorry and yes, it makes the agreement unenforceable in my opinion. Also there is no PTO to indicate a link to anything on the rear. Plus this is an application not an agreement so at a minimum it is only enforceable by a judge. So, yes if they do not defend you win and then you could apply to have it formallydeclared unenforceable but why take the risk if you win by default. In anycase wait for an opinion from some of those with lots of green. http://www.consumeractiongroup.co.uk/forum/legal-issues/

Edited January 2, 2009 by Ragtaggeorge
Pixie boots

[guzzleguts]

Hi rat

 

I was only refering to the part.

 

Under the terms of the agreement set out overleaf.

 

Like i said unlikely but worth thinking about as darknight is at court stage.

 

Probley to late for a CPR REQUEST?

 

GG

[mikek]

Yes, here is the regulation for APR nowhere does it mention 'variable' Also there is no initial credit limit specified so it would also be unenforceable for that reason i.e. a missing proscribed term.

(6) The APR referred to in paragraphs 15 to 17 of Schedule 1 to these Regulations shall in documents embodying regulated consumer credit agreements, other than exempted agreements-- (a) be denoted as "APR" or "annual percentage rate" or "annual percentage rate of the total charge for credit; and (b) where it is subject to change, be accompanied by the word "variable".

Consumer Credit (Agreements) Regulations 1983

1) The agreement says that they can determine the credit limit. This is a standard phrase listed in the schedules of the credit regulations and acceptable instead of a credit limit

2) I can see it says that the society has the power to vary those terms

3) The APR is not a prescribed term. The interest rate is. But from the wrongly calculated APR you can claim a miss-stated interest rate backsolving the equation. This is a delicate one and it works.

[mikek]

Guzz,

 

It does not matter it is an application form. they only need a document (literally any document) with the prescribed terms and the signature. They have it.

 

You need to argue on the correctness of the terms. I can see that the interest rate is miss-stated i.e. unenforceable.

 

Please open a thread in legal issues. You need help from a legal expert (only a mathematician here)

 

Best of luck

[darknight]

Mitek, I thought I had opened this thread in the Legal Issues forum ?

 

I have also received a photocopy of the terms and conditions from Halifax which appear to be from 1992 when the card was taken out. On the 2nd page where the halifax address is there is a number and the date (10/92).

 

Please can someone have a look at these and advise if some of the prescribed terms regarding the interest rate which people have said are not on the application form, are on here or not.

 

http://i440.photobucket.com/albums/qq126/darknight_man/Halifax%20CCA/scan0004.jpg

 

http://i440.photobucket.com/albums/qq126/darknight_man/Halifax%20CCA/scan0005.jpg

 

http://i440.photobucket.com/albums/qq126/darknight_man/Halifax%20CCA/scan0006.jpg

 

If Halifax are saying that these T&C's are with the application that I have scanned above, how can they prove this ? The application form is A4 in size, these T&C's are in A5. Also the application form copy they sent did not have anything on the back, however the application form states, 'Under the terms of the Agreement as set out overleaf'.

 

Mikek, you have said that the interest rate is mis-stated. Do you mean that they have APR in the table but not the actual interest rate ?

 

Also I have noticed a discrepency. On the application form in condition 5, it says that "Interest will charged on a daily basis at a rate of 1.95% per month". However in the T&C's in condition 5, it says, 'Interest will charged on a daily basis at a rate of 1.85% per month". So these T&C's can't be the ones for the application form. Right ?

 

Halifax have replied to the defence I submitted, on 24 Dec 08 with this copy agreement (actually an application form) and these T&C's. They have also provided a statement of account, and have now asked me sign a letter if I admit that I am liable for this debt. If I still dispute it, they say that they will ask the court to arrange a hearing. I have checked my claim online using MCOL, and Halifax have not submitted a reply to my defence to the court that they sent to me? Are they obliged to do this within 28 days of me filing my defence ? If so, their 28 days are up on 07 Jan 09. What happens if they fail to do this ? Does the claim get stayed, and what are the implications of that ?

 

Urgent advise on these points would be greatly appreciated.

 

Also please can someone urgently provide a letter template that I can use to tell Halifax that that I still dispute the claim, as the CCA provided by them does not contain all the prescribed terms. I need to quote the relevant sections of the law and any case's that may be relevant.

 

Thanks again.

 

DK.

[Ragtaggeorge]

I have checked my claim online using MCOL, and Halifax have not submitted a reply to my defence to the court that they sent to me? Are they obliged to do this within 28 days of me filing my defence ? If so, their 28 days are up on 07 Jan 09. What happens if they fail to do this ? Does the claim get stayed, and what are the implications of that ?

.

 

I believe that you win by default if they miss the court dates. Certainly if you filed against them and they did not defend they would get a judgement by default so it seems logical. I think you can ring up the court and ask, seems like a plan.

[mikek]

If the interest rate is mistated the agreement is unenforceable because the interest rate is a prescribed term. The APR can be "mistated", more accurately there is an acceptable tolerance of -0.1% +1% from teh correct APR.

 

I was clalculating the interest backwards from APR. The APR is mistated but within the permissible tolerance so better not to argue that way. I can double-check if you give me the first ever credit limit of the card.

 

However they have handed to you the unenforceability of the agreement. They say they levy interest at 1.95% in the agreement. However, by sending you the terms which state that the interest is 1.85% they have given you proof to argue in court that the interest rate in the agreement was incorrectly stated. They may try to produce the first statement to show that they actually applied 1.95%. This is irrelevant though. What is stated in the agreement is what is examined and they have given you proof that the interest rate was incorrect. It does not matter that the difference is only 0.10%. It is not neglible. If their response was part of a s.78 request of the CCA1974, they are legally bound by it pursuant to s.172(1) of the CCA 1974. The interest rate is a prescribed term and cannot be mistated (Lord Justice Tuckey Judgment). If a prescribed term is incorrectly stated the agreement is unenforceable pursuant to s.127(3) of the CCA 1974.

 

Also, does the balance of the card include any default charges? I bet it does. You can contest the amount as it also includes unfair default charges and interest levied on those.

 

Again I am not good with legal wording. But if you search well in the forums you will find defence to adjust to the needs of your claim.

 

Try adjusting this one http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/119564-halifax-platinum-cca-5.html

 

and add arguments about unfair charges and the proof of the incorrect interest statement and the legally binding responses of the bank

 

Best of luck

[Ragtaggeorge]

Nice work mikek.

[darknight]

Thanks Mikek.

 

The first credit limit on the card was 1500.

 

DK.

[mikek]

Using the Consumer Credit (total charge for credit) Regulations 1980 as ammended and as they applied prior to the 1999 regulations we get:

 

-Correct APR for purchases: 28.2%. Tolerable values: 28.1%-29.2%

-Correct APR for cash advances: 29.4%. Tolerable values: 29.3% - 30.4%.

(They have made a mistake in calculating APR for cash advances on the full credit limit although their conditions clearly state that only 50% of the can be withdrawn in cash. Argue that this is a misleading tactic to make expensive credit look cheaper)

 

They have stated the APR incorrectly in the signature document, but they will argue it is within the permissible tolerances. But use it as an additional argument to add up to the big picture of their miss-behaviour in legal documents.

 

However, I can see in the additional conditions document they sent you that both APRs are also different. APR is calculated from the interest. Therefore, the interest must also have been different. Indeed, they quote a different interest rate in the additional document. This renders the agreement unenforceable pursuant to s.127(3) of CCA 1974. If one document states one interest rate and another relevant document states a different one, nobody can be certain what the correct one was on the execution of the agreement. It does not matter what interest they applied on the first statement (they may try this) . What they put on their agreements and relevant conditions matter because they may have deceived you into entering an agreement with them. It does not matter whether you suffered prejudice or not. Use the authority of the Judgment of Lord Nicholls of Birkenhead in the Wilson case (House of Lords), where it is stated that it makes no difference whether there has been prejudice or not.

 

I believe your big weapon is the fact that they have provided proof in a legally binding statement of theirs that casts doubt and uncertainty in the correctness of the prescribed (and not only) terms. In doing so they were not transparent and did not cater for the consumer protections afforded in statute law and relevant legislation.

 

Other things you can include in your statement are:

-Misstated APRs

-Unfair charges and interest on them

-Invalid Default Notice

 

I believe that if you argue your case carefully, you can win.

 

Best of Luck

[darknight]

I have written back to Halifax saying that the CCA is improperly executed and unenforceable, due to the APR incorrectly stated and due to all the terms of the agreement not being embodied in the agreement document as per section 61(b) of the CCA 1974.

 

The case is currently stayed as Halifax have not replied to my defence.

 

Also I have never received a default notice and I have requested a copy of the default notice they allegedly sent to me. They have said that they do not have a copy of the default notice. All they have sent is a computer print out showing that a default notice was printed and a blank default notice template. Surely this does not prove anything. They also don't seem to have any proof of postage etc.

 

They are saying that they will get the case transferred to my local court. If they can not produce a copy of the default notice they sent to me with proof of service, how can they proceed with the case, as the whole case depends upon a valid default notice served to me.

 

Please can someone advise what I should write to Halifax, saying that they have to provide a copy of the default notice. I need to know what laws to quote etc. If I can write a strong letter to Halifax, I'm hoping they may drop the case as they would be put under strict proof that a valid default notice was served and proof of service.

 

Thanks,

DK

[Gingerbread]

Hello darknight,

 

Any chance of an update please? I have been sent the same CCA.

 

[darknight]

The latest is that the claim was stayed in Feb 09 due to Halifax not replying to my defence.

 

They made an application in April 09 to lift the stay, but that application was struck out without hearing and without service with the Judge citing 'failure to provide any evidence in support or reasoning'.

 

Now Halifax have made another application to lift the stay. This time there is a 5 minute hearing in August.

 

Can anyone tell me why would the judge order there to be a hearing for this application ?

 

Thanks

DK

[Gingerbread]

Hi darknight, just spotted your update. Can't help with your query I'm afraid but hopefully someone might if I bump this up for you.

 

Incidentally, someone has posted on my thread regarding the interest rate issue if it's any help to you. I hope you get on ok. I have a few concerns about the CCA myself!