help.. halifax credit card nightmare

[angel007]

hi people...

 

I've had a halifax credit card for many years. After going into the bank one afternoon to inquire about a credit card, i left without signing an agreement but 2 weeks later a card came through my door. I dealt with the account responsibly for years until they kept increasing my limit up to over £7000 - one thing led to another and i've ended up with 3 cards - each to pay the other off and now i'm in trouble with £17,000 debts. I am paying interest only on the halifax card £100 monthly since sept 08, and every month i'm getting charges added on because i'm always late paying as i have to juggle paying my cards with my benefit money and i have 2 children. It's a nightmare. I have paid over £3000 in interest and charges on my halifax card alone in 3 years. They will not reduce the interest. My virgin card have stopped interest. And my sainsburys card will not stop interest - i know they are part of halifax.

 

Yesterday after reading through your wonderful site, i sent off the request for cca to both sainsburys and halifax with unsigned letters and postal orders- knowing full well they have not got my signature on an agreement as i did not sign one for halifax anyway - and the sainsburys card was done about 6 years ago in the supermarket.

 

What do i do when the 12 + 2 days is up? do i send the letter saying i'm not paying them anymore? and can i get all the charges back i've paid them over the years

 

x :-|

[creditcardmug]

Hi, when/if you get a reply, after 14 days post on here again, you will need to send the account in dispute letter or we will have to look at what they have sent, don't worry.

 

Regards

[angel007]

hi.

 

Thank you for the reply.

 

I will report back in a couple of weeks.

 

[angel007]

hi..

 

Not sure if its good news, but neither halifax or sainsburys have replied to my cca requests. By my calculations its been 14 days since they signed for my letters.

 

Whats the best follow up letter?

 

Please help

 

Regards jo

[creditcardmug]

Ok, as the time is up, now send them this, have fun:D

 

I DO NOT AKNOWLEDGE ANY DEBT TO YOUR COMPANY

 

 

 

Re: =

 

Dear Sir/Madam

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On the DATE I wrote to you requesting a copy of the credit agreement and other information under the Consumer Credit Act 1974 (Sections 77-79).

 

On DATE a member of your staff signed for delivery of my written request and I have an electronic proof of delivery showing their signature and the date.

 

To date you have failed to comply with these requests in any way, whether by confirmation of receipt of the request or by supplying the requested documents.

These documents I requested should be readily available as proof of your legal right to collect this account under the Consumer Credit Act 1974.

 

In my letter of the DATE I made a formal request for a copy of the signed, executed credit agreement for the above account under section 77(1) of the Consumer Credit Act 1974. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before you enter into a default situation.

 

 

 

This limit has expired.

 

As you are no doubt aware section 77(4) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled, while the default continues, to enforce the agreement.

 

Therefore this account has become unenforceable at law.

 

As you have failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 21 days I expect that this means you agree to remove all such data.

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

I will be reporting your actions to any such regulatory authorities as I see fit.

 

Yours Sincerely

[angel007]

WOW... thankyou very much

 

I will be sending it to both of them. I'm sure they will take notice now!

 

I'll keep you posted.

 

X

[angel007]

hi.

 

I have received replys now from my original requests for cca. I have attached the letters and signed agreement from sainsburys. They also photocopied 10 page agreements both current terms and terms from when i originally got the cards. There was no signed agreement from Halifax. Plus they spelt my name wrong!!

 

What does it mean? Are they unenforcable?

 

Please advise

 

regards jo

Edited February 15, 2009 by angel007

[creditcardmug]

Hi they are too small to read im afraid, try uploading them to photobucket, and paste the links into your post

[angel007]

Pictures by isis007 - Photobucket

 

 

hope it works!!!

[creditcardmug]

On the sainsburys, i cant see the "prescribed terms", although its difficult to read, are they there?, is there any mention on it as to where these are to be found?

 

As to the other one, it seems they don't have an agreement, although you cant be 100% sure, until/unless you get to a court claim with it.

 

For your refererence here is an explanation of the prescribed terms

 

Firstly, the agreement must contain certain Prescribed terms under regulations made by the Secretary of State under section 60(1) CCA 1974, the regulations referred to are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) The prescribed terms for a Running credit account as set out below

 

17. The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following--

1. Number of repayments;

2. Amount of repayments;

3. Frequency and timing of repayments;

4. Dates of repayments;

5. The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

18. It is submitted the credit agreement supplied falls foul of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) in so far that the prescribed terms are not contained within the agreement. These terms must be contained within the agreement. They cannot be contained within a separate document. The prescribed terms must be within the agreement for it to be compliant with section 60(1) Consumer Credit Act 1974

 

 

[angel007]

there is no prescribed terms anywhere on the thing I signed. but on the photocopied credit agreement there is I think. I will scan it in and post

[creditcardmug]

there is no prescribed terms anywhere on the thing I signed. but on the photocopied credit agreement there is I think. I will scan it in and post

 

Does it say for instance, the terms are overleaf?

[angel_1]

Hiya angel from another angel lol

 

by the way hiya creditcardmug ive again learnt from you thanks

 

oh by the way angel i would pretty quickly go and edit your scans cos i can see your names on both cca letters!!

and also would delete their references cos they may identify you from those references not sure if they can but be careful - i also would delete the amounts too just to be extra safe

 

laters angel and good luck

 

so you didnt get any cca for the halifax one only that statement at the bottom that they dont have to send a copy jargon cos thats what igot the same sentence only got historic and recent terms -

[angel007]

nowhere does it say terms overleaf - just something about balance transfers.

 

I have uploaded the other thing they sent Pictures by isis007 - Photobucket

 

thanks angel!!! I have deleted the letters, and will sort them out and repost

[angel_1]

okay angel

 

good i was just making sure you had got my msge otherwise was going to alert you by pm before logging off

 

have a fun eve i may be back laters

 

laters angel x:)

[creditcardmug]

Ok well there's nothing enforceable here, the pages you just posted arent linked in any way to the document you signed, so are irrelevant.

 

So how do you want to go forward on this, do you want to dispute it?

i can post up letters if you do, be prepared for a lot of drivel from them protesting they are right and you are wrong.

[angel007]

lovely stuff.

 

I would certainly like to dispute them both. I never signed any agreement with Halifax so I know for certain they cannot suddenly produce a copy unless they want to commit fraud! I'm quite prepared and ready for the fight.

 

I really appreciate your help CCM.

 

Angel laters angel

[creditcardmug]

Ok, heres the one to send for the sainsbury one, remember dont sign them just type your name,

 

I DO NOT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY

 

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

This account is in Dispute .

 

On xx/xx/2007 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

 

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable , it would be in everyone’s interest to consider the matter closed and for you to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

I respectfully request a response to this letter in 14 days

 

 

I trust this out lines the situation

__________________

[creditcardmug]

For the other

 

I DO NOT ACKNOWLEDGE ANY DEBT TO YOUR COMPANY

 

Account Number: XXX

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Yours faithfully

__________________

[creditcardmug]

If you bank with Halifax/BOS/Lloyds or any bank they own i strongly suggest you open a bank account elswhere, and close this one

[angel007]

Thank you very much for the letters. Your a star.

 

I have a lloyds account - have they taken over already then?

[creditcardmug]

Yes Lloyds own HBOS as of a month ago....i dont know if they could apply off-setting within the group, but i wouldn't take any chances

 

Suggest you keep all correspondence in separate folders, and if/when you start getting an inordinate amount of phone calls, i have a letter for that as well. (dont speak to them on the phone BTW).

 

PS if you are considering doing the same with any other unsecured creditors, make sure you dont open an account connected to any of them either

[angel007]

sorry to be a pain, but I uploaded the other agreement they sent me as well. It looks like a proper agreement but I didn't sign this either,never received anything like this before. So am I right in thinking its irrelevant?

 

regards

[angel007]

good advice, I will start looking for a new account asap.

[amsgirl]

CCM if you get a chance could u pls look at my post 1st Credit/Halifax CCA Response.I would really value your opinion on whether or not what they have sent me is valid CCA. Sorry for interrupting:)