CCA reply is this enforceable

[focus243]

I requested a copy of my CCA from Cabot who have taken over my credit card account with Halifax. I applied for the card online and have today received this along with several other pages of copies of terms and conditions, can anyone tell me if this is enforceable.

 

 

http://i279.photobucket.com/albums/kk156/focus243/halifaxdocsignature.jpg

[clemma]

Bumping up the thread for you. I'm not too sure about this as the rules are slightly different for an online application form. I'm sure someone will be along shortly.

[focus243]

Thanks Clemma

[spartathisis]

Will post to help keep it near the top.

 

Is this all they sent, coz even though im no expert where are things like how it is to be repaid, interest rates etc? it also states at the top it is a credit agreement, think it should say credit card agreement.

 

did you apply or was it one of the "you have been pre-approved just fill in jobbies"?

 

my halifax debt has also been sold to cabot just as i had sent off a DSAR. Got all BUT the important stuff back )))) they sold it to cabot for 10p in the pound!! Looks like Im going to have fun with cabot.

 

good luck though. chin up.

 

ps how did you get notified of the sale? think you have to have a Deed of Assignment with proof of delivery, otherwise how do you know cabot not trying it on?

[focus243]

Hi Spartatthisis

 

I applied for the Halifax credit card online in Jan 04, they sent me a form to sign (on my first posting) then they sent me the card.

I got into fiancial difficulty and set up a payment plan, then out of the blue in Nov 08 I had a letter from Cabot saying they had been assigned the debt also was a copy of a letter from Halifax saying the debt has been assigned to cabot.

I CCA'd them and have received the terms and conditions on 3 seperate pieces of paper, just a standard print off that could apply to anyone, there was nothing with my name or credit limit, or my signature. The only thing with my signature is the one that I have posted in my first post.

[focus243]

Please can anyone advise me.

[clemma]

This is what I found so far

 

for an online agreement all they have to show is a tick box, where you ticked to agree to the T's and C's, they don't need to provide a 'signed' agreement as such -

 

As The Consumer Credit Act 1974 (Electronic Communications) Order 2004 came into force in December 2004 any online agreements entered into prior to this date still need a signed executed credit agreement.

Electronic signatures weren't considered valid until this date

 

So it really comes down to when you took out the credit card, as to what needs to be provided. Sorry I can't be of further help, but at least it's bumped the thread back up.

[clemma]

Sorry, I have just realised you took this card out in January 2004 - therefore they need to send a signed, executed agreement.

[focus243]

Does anyone know where there is a template letter to send, to say they havn't sent a signed executed agreement, please.

[guzzleguts]

They have sent you a signed executed agreement, but imo its not enfoceble no prescribed terms on sig doc.

 

Hope that helps

 

GG

[focus243]

I am a bit confused, sorry, are you saying they have met the CCA requirement?

[clemma]

Sorry, I personally think there is information missing i.e. the prescribed terms. I don't know where the template letter is, but hopefully someone else will. I don't think it is enforceable as it is.

[clemma]

.......

Edited January 27, 2009 by clemma
good old double post

[focus243]

As I have signed in the box under sign here only if you wish to be bound by the terms and conditions, does this mean it is enforceable, even if there are no terms or conditions on the page that I have signed?

Edited January 27, 2009 by focus243

[cds]

from my limited knowledge if there are no prescribed terms it is un-enforceable.

 

sure there will be somebody along shortly to give you the finer details

[guzzleguts]

They have complied to your request as per sec 77- 78 at least you got a signature, most come back blank, or no reply at all.

 

Section 77-78 only states that they have to supply you with a copy of the agreement, and normaly when its unenforceble like yours they would send a blank one.

 

GG

[guzzleguts]

Here are the prescribed terms

 

15. 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

 

 

the document hasnt got any of them so unenforceble imo

 

GG

[havinastella]

Totally unenforceable as no prescribed terms, seperate terms and conditions not within the four corners of the agreement or referred to.

 

Guts is right in the fact that they HAVE complied with your request, but the agreement is unenforceable and they would have to obtain a Court Order to enforce it.

 

You may want to have a look at this thread

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

 

 

Jogs

[focus243]

Hi havinastella

 

Does this means, if I don't start making payment they will take me to court and win and can make it enforceable.

[havinastella]

Hi havinastella

 

Does this means, if I don't start making payment they will take me to court and win and can make it enforceable.

 

They may well take you to court and they may win, it all depends on the Judge at the time.

 

Unfortunately, some Judges do not know consumer law and make silly mistakes. How much (roughly) do you owe on the card?

 

Are then any unfair charges you can reclaim?

 

You could try and send them something like this

 

Dear Sir/Madam

Re: Account number: xxxxxxxxxxxxxxxx

 

ACCOUNT IN DISPUTE

 

Thank you for sending me what you have confirmed to be a true copy of the credit agreement that exist in relation to this account. As you have sent this document in response to my requests under Section 78 (1) of the Consumer Credit Act 1974, then this statement by you is now binding on you as per section 172 of the Act.

 

The document that you have supplied does not constitute a legally binding regulated agreement between us and is in breach of Section 61 of the Consumer Credit Act 1974 and is therefore unenforceable by virtue of Section 127 of the act.I am aware that Section 127 was repealed in the Consumer Credit Act 2006 but this is not retrospective and applies only to agreements signed after 6th April 2007.

 

I do not and will not acknowledge this alleged debt. Furthermore, I dispute the legality of the debt until such a time as you can produce a satisfactory consumer credit agreement.

 

Furthermore, you are advised that a creditor is not permitted to take any action against an account whilst it remains in dispute. The lack of a properly executed credit agreement is a very clear dispute and therefore the following applies:

 

• You may not demand any payment on this account, nor am I obliged to offer any payment to you.
  
• You may not add any further interest or charges to this account.
  
• You may not pass this account to any third party.
  
• You may not register any information in respect of this account with any of the credit reference agencies.
  
• You may not issue a default notice related to this account.
  

I also requested that you remove any default registered with any credit reference agencies against this account as you are not permitted to default a disputed account. I further request that you confirm to me in writing that you have complied with my request. Failure do so may result in legal proceedings being taken against you to enforce the removal of this default and at such time you will need to explain why you have issued a default on an account that is not regulated under the consumer credit act.

 

The Data Protection Act

 

Please note: you may also consider this letter 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 you are advised that you are not entitled to refer this account to any third party and this includes but is not limited to any debt collection agency and credit reference agency.

 

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 fail to respond within 21 days, I will expect that this means you agree to remove all such data.

 

I look forward to your reply regarding this matter.

 

Yours faithfully

Print name don’t sign

 

 

It'll alert them that you know what you are on about.

 

Jogs

[focus243]

Thanks Havinastella, your advice is appreciated.

[clemma]

That was the letter I was looking for - thanks stella

[focus243]

I am still a bit confused, I have been advised to send the reply thanking the DCA for a copy of my credit agreement,yet it doesn't have prescribed terms, or the OC signature, or any account number that they are referring to, it does also say

 

THE DETAILS PRINTED BELOW WERE PROVIDED BY YOU AS PART OF YOUR APPLICATION. PLEASE CHECK TO ENSURE WE HAVE RECORDED YOUR INFORMATION CORRECTLY THEN SIGN IN THE SPACE INDICATED AND RETURN IN THE FREEPOST ENVELOPE.

 

As I applied online is this an application form rather than a CCA agreement as shown in post 1.

 

If anybody could confirm that I am sending the correct letter back I would be grateful.

[Boss-man]

Hi Focus,

 

I am not an expert but have dealt with a number of DCA's regarding the CCA issue. The fact that yours is an online application may change things slightly but hopefull an expert will be along to clarify.

 

The law as I understand it states that they need to provide a true signed agreement (as it was taken out in Jan 04).

 

The credit agreement must contain all the prescribed terms as set out in the Consumer Credit Act. If it does not then it is unenforceable (which I believe what they sent you is not enforceable). Write back to them thanking them for the paperwork but tell them that its not a valid agreement and therefore totally unenforceable. Something like below has worked for me in the past. See what they then come back with, hopefully they will go away.

 

Letter is below, you will need to alter slightly to suit your case:

 

Good Luck,

Boss-Man

 

Dear Sir / Madam

Your Ref: XXXXXXXXXX

Thank you for your response dated XXXXXXXX to my request under the Consumer Credit Act section 78.

 

The contents of your response indicate that the documentation you have provided is a true copy of the original credit agreement and that you have complied with my request.

 

As you must realise the document sent purporting to be a credit agreement does not contain 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 these 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.

As you have failed to provide the relevant documentation within the required timescale the account remains in dispute. Whilst the account is in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, make any further charges to the account or pass the account to anybody else.

Please note you may also consider this letter 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 including any defaults. 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 fail to respond within 21 days, I will expect that this means you agree to remove all such data.

[focus243]

Thanks Boss-Man, I hope it works for me too.