1st Credit Reponse to CCA request, start of a long year.

[underdog13]

Well it's just my opinion, but those terms on page 2 seem a little *ahem* cut and pasted, shall we say? I have read on other threads, that people have received very different versions of their agreements from HBOS under a SAR to those they receive under a s78 request......

 

In addition, why would there be two codes on p 2, bottom right hand corner? Most documents usually only have one, which again would suggest they may have been creative (allegedly;))

[deepdebt]

Well it's just my opinion, but those terms on page 2 seem a little *ahem* cut and pasted, shall we say? I have read on other threads, that people have received very different versions of their agreements from HBOS under a SAR to those they receive under a s78 request......I guess its an SAR next then, see what comes to light.

 

In addition, why would there be two codes on p 2, bottom right hand corner? Most documents usually only have one, which again would suggest they may have been creative (allegedly;)) Yes I thought that very strange as there are 2 different codes on the same documnet lets see what turns up with the SAR.

 

Cheers underdog13.

[SteveH2508]

IMHO they might be able to argue successfully that these are part of the same document. The code LT/PI/0901 appears on both pages. The second page appears to contain the prescribed terms. Sorry to rain on your parade but I fear that this could be held to be an enforceable agreement.

[lickthewallfatboy]

all the prescribed terms have to appear within the page where the signature goes

 

they don't in that document

[deepdebt]

all the prescribed terms have to appear within the page where the signature goes

 

they don't in that document

 

Hi lickthewallfatboy,

 

Thats right, these are front and back pages! this would explain why the Halifax sold this account to 1st Credit, not enforceable.

 

Thank you so much for your input, if possible could you point me in the direction of this clause.

[lickthewallfatboy]

one of the guys will maybe post the relevant clause.....there are a few real CCA "experts" on the forum who know their stuff

[deepdebt]

one of the guys will maybe post the relevant clause.....there are a few real CCA "experts" on the forum who know their stuff

 

Hi lickthewalfatboy,

Thank you I look forward to 'expert' help.

[fuzzybobble]

I'd say it was unenforceable. Before May 2005 the pescribed terms must be within the four corners of the signature document. There's nothing to link the two pages, like page 1 of 2 page 2 of 2, etc. The other page doesn't contain your name, so could apply to anyone. The terms cannot be in another document.

 

If you were to contest this in court, they'd probably have a hard time proving otherwise, which is what they would have to do. Most agreement being produced these days are either microfiche or electronically stored. So it's unlikely they would have the actually original application form.

 

Another thing I discovered with Halifax is the default notices they send out are also invalid, as they don't give enough time to rectify the arrears, or the arrears are at least 40% unlawful charges.

 

If you're having problems getting account statements or a copy of the default notice from 1st Credit, then send a request for them under CPR.

It doesn't cost anything, and requires them by law to provide true copies of any documents you ask for. It also makes them wonder if you're actually planning legal action against them too.

 

Send them this letter recorded delivery.(all you need to do is fill in dates and name of your local county court where the xxxxx's are.)

 

 

FORMAL REQUEST FOR INFORMATION

CPR part 31.16

 

Dear Sirs,

 

Account number,

 

On XXXXX I wrote to your organisation requesting that you supply me a copy of the agreement for my account. My request extended to the full agreement which bore my signature. Additionally I require A full statement of account, and a true copy of the Default Notice which was claimed to be issued by Halifax.

 

I note that to date I have not received a statement of account which I requested. In view of the circumstances I do not feel it unreasonable to ask for this document to be disclosed, it is not commercially sensitive nor is it a restricted document and should be easily accessible for an organisation such as yours. therefore I would ask that you provide me with a copy of the contract which bears my signature, I require the complete document with all parts including Terms and Conditions, Statements for the account, and a true copy of the Default Notice from Halifax.

The reasons why I require this information are clearly set out within my original letter dated XXXXX , but for clarity I require this document for the following reasons-

 

1. I require this as I have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed.

2. Because I believe that the Payment protection insurance was not correctly incorporated within the agreement

3. Because I believe the Default Notice may have been inorrectly served.

 

Since this matter is likely to be subject to proceedings and given that your organisation is likely to be a defendant in any action which would be brought by me, I must draw your attention to Civil Procedure Rules part 31.16(3)©&(D) which gives the court the power to order you to disclose this document to me.

The disclosure of these documents will allow me to consider any claim I may have against your organisation and will allow for the matter to be dealt with possibly without the need for costly litigation. Therefore I again ask that you provide me with the documents which I have previously requested . I don't not consider this request unreasonable and therefore if you fail to comply with my request I will be left no option but to make an application to XXXXXXXX County Court for an order made under the provisions of CPR 31.16 ordering you to disclose the documents which I have requested.

Additionally I will ask the court to make an order for my costs in bringing this application and reserve the right to disclose all communications in this matter before the court should such an application become necessary

Please confirm by no later than 4pm on XXXX(allow 21 days)XXX that you will comply with my request or if you will not comply, please provide your reasons in writing.

 

Yours Faithfully, xxxxxxxx

 

 

That should shake them into action and provide few more bits of paperwork you can find faults with. With the Default Notice, Halifax usually mess up on all 3 things that can be wrong with them.

Once 1st Credit have provided you with the DN and statements, you'll be able to add some more ammo to the unenforceable agreement.

 

As 1st Credit are being investigated by the OFT, I don't think you'll have too much of a problem getting them to dance to your tune.

[fuzzybobble]

Another thing I noticed.

 

The code number on the bottom of page 2 looks like it's been added on afterwards to make it look like part of page one.

 

Try putting a ruler along the bottom of the code number so the bottoms of the numbers are just touching the edge of the ruler. Then look along the ruler. I tried it on my laptop screen and it's out of alignment slightly compared to the angle of the text in the remainder of the page. It should be even easier to spot on the A4 copies you have.

 

To me it looks like it's been "added" afterwards.

 

May be worth a CCA request direct to Halifax, and see if there's any differences in the copies they provide.

[fuzzybobble]

Here's a few more bits and bobs of info I've found. I'm sure you'll find some bits useful.

 

 

clearly an application form. The header required by CCA is not prominent whilst the words 'application form' or 'credit card application' are very prominent.

It appears to be unenforceable because it is an application form and not an agreement. Also unless you received the rest of the information required by CCA (eg T&Cs, statement of account), the creditor has not complied with the Act and if the deadlines have passed they are in default.

 

No signature from Halifax, so this adds weight that it's an application and not an agreement.

 

Application forms do not contain any of the Prescribed Terms.

This is because they just that- application forms!

The Prescribed Terms are in the Terms and Conditions, which dont have anywhere for anyone to sign!

 

Signatures

All agreements are to be signed by both customer and trader, or their representatives, and the date of signature entered. The customer’s signature and its date must be inside a box. This box can be of any size and appear anywhere in the agreement, but the wording inside it must be easily legible and must follow that for the appropriate type of agreement as set out in Appendix 2. The signature of the trader and its date must be outside the customer’s signature box. Similarly the signature of any witness, and its date, must also be outside the customer’s signature box.

 

The issue regarding the creditors signature is a sticky one.

According to section 61 an agreement is not properly executed without both signatures and the penalty for this is given in section 65 which is that it would make the agreement enforceable only by order of the court.

The definition given in section 189 of executed is clear in that it says that both signatures must be there in order for it to be executed however there is no penalty within the act for none compliance of this section?

You could say that as a common law principle the agreement was void because it was not signed by both the parties but there is nothing to say that this would make the agreement totally unenforceable in respect of the CCA.

To complicate matters further the act also talks of the agreement being "Made" which IMO refers to the start of the bargain for instance if the agreement requires an action or payment before it comences.

I think that if an opperating agreement was taken to court without the creditors signature the judge would give consideration to its validity on the grounds of section 61(a) and the rule on the amount of prejudice caused by the ommision the matter of whethter it was executed would be proved by the fact that the creditor had suuplied the goods or credit.

THis doesn't mean IMO that the lack of the dated creditors signature should be discounted when reviewing an agreement as this by definition (providing the creditor was the last to sign)represents the date tha agreement stared. In theory if the agreement has not started then it is prospective and the debtor has the right to withdraw under section 59 and section 57 but again given proviso of whether the agreement was active or not .

There is also the consideration of the cancellation period as this should start when the copy of the executed agreement is sent by the creditor (on a cancellable agreement) if no date of comencment is shown how can a date for possible cancellation be calculated.

[underdog13]

Great post, fuzzybobble. With regards to creditors signatures on application forms/agreements, what is the implication if the cred makes an error and date stamps it a month earlier; ie, it reads as the cred signing the agreement before the debtor?

[deepdebt]

I'd say it was unenforceable. Thats our opinion to, its clearly an application form. Before May 2005 the pescribed terms must be within the four corners of the signature document. Yes understood and agreed, again looks even more like an application form and NOT a credit agreement. There's nothing to link the two pages, correct like page 1 of 2 page 2 of 2, etc. The other page doesn't contain your name, correct so could apply to anyone. The terms cannot be in another document. They don't even say see overleaf for additional terms, in addition those terms on page 2 have numbers against them 6. & 7. but no number appear against terms on page 1.

 

If you were to contest this in court, they'd probably have a hard time proving otherwise, don't worry it will be contested by us which is what they would have to do. Most agreement being produced these days are either microfiche or electronically stored. So it's unlikely they would have the actually original application form. Dates from 2001.

 

Another thing I discovered with Halifax is the default notices they send out are also invalid, as they don't give enough time to rectify the arrears, or the arrears are at least 40% unlawful charges. To date we have never received a default notice, woundn't even know what one look like is it a letter or something.

 

If you're having problems getting account statements or a copy of the default notice from 1st Credit, I was thinking of an SAR first of all then send a request for them under CPR. would do so depending on whats received from the SAR.

It doesn't cost anything, and requires them by law to provide true copies of any documents you ask for. It also makes them wonder if you're actually planning legal action against them too.

 

Send them this letter recorded delivery.(all you need to do is fill in dates and name of your local county court where the xxxxx's are.) Thanks been looking for a CPR 31.16 request.

 

 

FORMAL REQUEST FOR INFORMATION

CPR part 31.16

 

Dear Sirs,

 

Account number,

 

On XXXXX I wrote to your organisation requesting that you supply me a copy of the agreement for my account. My request extended to the full agreement which bore my signature. Additionally I require A full statement of account, and a true copy of the Default Notice which was claimed to be issued by Halifax.

 

I note that to date I have not received a statement of account which I requested. In view of the circumstances I do not feel it unreasonable to ask for this document to be disclosed, it is not commercially sensitive nor is it a restricted document and should be easily accessible for an organisation such as yours. therefore I would ask that you provide me with a copy of the contract which bears my signature, I require the complete document with all parts including Terms and Conditions, Statements for the account, and a true copy of the Default Notice from Halifax.

The reasons why I require this information are clearly set out within my original letter dated XXXXX , but for clarity I require this document for the following reasons-

 

1. I require this as I have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed.

2. Because I believe that the Payment protection insurance was not correctly incorporated within the agreement

3. Because I believe the Default Notice may have been inorrectly served.

 

Since this matter is likely to be subject to proceedings and given that your organisation is likely to be a defendant in any action which would be brought by me, I must draw your attention to Civil Procedure Rules part 31.16(3)©&(D) which gives the court the power to order you to disclose this document to me.

The disclosure of these documents will allow me to consider any claim I may have against your organisation and will allow for the matter to be dealt with possibly without the need for costly litigation. Therefore I again ask that you provide me with the documents which I have previously requested . I don't not consider this request unreasonable and therefore if you fail to comply with my request I will be left no option but to make an application to XXXXXXXX County Court for an order made under the provisions of CPR 31.16 ordering you to disclose the documents which I have requested.

Additionally I will ask the court to make an order for my costs in bringing this application and reserve the right to disclose all communications in this matter before the court should such an application become necessary

Please confirm by no later than 4pm on XXXX(allow 21 days)XXX that you will comply with my request or if you will not comply, please provide your reasons in writing.

 

Yours Faithfully, xxxxxxxx

 

 

That should shake them into action and provide few more bits of paperwork you can find faults with. With the Default Notice, Halifax usually mess up on all 3 things that can be wrong with them.

Once 1st Credit have provided you with the DN and statements, you'll be able to add some more ammo to the unenforceable agreement.

wow!

 

As 1st Credit are being investigated by the OFT, I don't think you'll have too much of a problem getting them to dance to your tune. They need to be, they are a complete bunch of bullies that bend the law beyond belief as berro7 has found out.[/quote]

 

Something here to get me teeth stuck into. Thanks!

[deepdebt]

Another thing I noticed.

 

The code number on the bottom of page 2 looks like it's been added on afterwards to make it look like part of page one. Agree the LT/P1/0901 number is totally out of line and the terms referred to have numbers by them 6. & 7. what happened to terms 1. to 5. then? there certainly not on page 1 are they, looks like a creative job here.

 

Try putting a ruler along the bottom of the code number so the bottoms of the numbers are just touching the edge of the ruler. Then look along the ruler. I tried it on my laptop screen and it's out of alignment slightly compared to the angle of the text in the remainder of the page. It should be even easier to spot on the A4 copies you have. Yep totally out of alignment.

 

To me it looks like it's been "added" afterwards. Yep agreed! I'd say page 2 is not from the 'Your Priority Reservation Form' on page 1.

 

May be worth a CCA request direct to Halifax, and see if there's any differences in the copies they provide. Yep agreed, will be actioned forthwith.

 

The plot thickens!

[fuzzybobble]

A lot of creditors don't keep the deault notices, they just sent them out from a computer generated template. If they cannot produce one, then it means they cancelled the agreement without proof they ever sent a Default Notice. So they effectively cancelled the agreement and you owe nothing.

 

They cannot reissue one at a later date, as there is no live agreement to default on.

 

If they do produce a Default Notice, then it has to comply with certain things to be valid.

 

If they manage to produce a copy of the DN, then post it here, and we'll see what's wrong with it.

 

I found 3 things wrong with mine. 2 of which render it improperly served.

[deepdebt]

Here's a few more bits and bobs of info I've found. I'm sure you'll find some bits useful.

 

 

clearly an application form. Yep, its clearly labelled 'Your Priority Reservation Form' The header required by CCA is not prominent whilst the words 'application form' or 'credit card application' are very prominent.

It appears to be unenforceable because it is an application form and not an agreement our thoughts precisely. Also unless you received the rest of the information required by CCA (eg T&Cs, statement of account), the creditor has not complied with the Act and if the deadlines have passed they are in default. Only got these 2 pieces of paper, they want us to agree its our signature before they 'send you a complete copy of the relevant document', I think this may need reporting to the OFT as they are clearly not complying with our CCA request.

 

No signature from Halifax, so this adds weight that it's an application and not an agreement. Yes we received it through the post one day and its clearly labelled 'Your Priority Reservation Form' thats what it is, we never received any follow up documents after this Reservation Form either.

 

Application forms do not contain any of the Prescribed Terms.

This is because they just that- application forms!

The Prescribed Terms are in the Terms and Conditions, which dont have anywhere for anyone to sign! Agreed.

 

Signatures

All agreements are to be signed by both customer and trader, or their representatives, and the date of signature entered. The customer’s signature and its date must be inside a box. This box can be of any size and appear anywhere in the agreement, but the wording inside it must be easily legible and must follow that for the appropriate type of agreement as set out in Appendix 2. The signature of the trader and its date must be outside the customer’s signature box. Similarly the signature of any witness, and its date, must also be outside the customer’s signature box. Only the customer appears to have signed this Reservation Form, there's certainly no other boxes for the trader to have signed in and dated.

 

The issue regarding the creditors signature is a sticky one.

According to section 61 an agreement is not properly executed without both signatures and the penalty for this is given in section 65 which is that it would make the agreement enforceable only by order of the court.

The definition given in section 189 of executed is clear in that it says that both signatures must be there in order for it to be executed however there is no penalty within the act for none compliance of this section?

You could say that as a common law principle the agreement was void because it was not signed by both the parties but there is nothing to say that this would make the agreement totally unenforceable in respect of the CCA.

To complicate matters further the act also talks of the agreement being "Made" which IMO refers to the start of the bargain for instance if the agreement requires an action or payment before it comences.

I think that if an opperating agreement was taken to court without the creditors signature the judge would give consideration to its validity on the grounds of section 61(a) and the rule on the amount of prejudice caused by the ommision the matter of whethter it was executed would be proved by the fact that the creditor had suuplied the goods or credit.

THis doesn't mean IMO that the lack of the dated creditors signature should be discounted when reviewing an agreement as this by definition (providing the creditor was the last to sign)represents the date tha agreement stared. In theory if the agreement has not started then it is prospective and the debtor has the right to withdraw under section 59 and section 57 but again given proviso of whether the agreement was active or not .

There is also the consideration of the cancellation period as this should start when the copy of the executed agreement is sent by the creditor (on a cancellable agreement) if no date of comencment is shown how can a date for possible cancellation be calculated. Exactly, so wheres the missing presribed terms stating credit limit etc???[/quote]

 

So have got a new action plan now and we will see what comes of it. A BIG THANK YOU for your help.

[ODC]

Did you ever get a properly served Notice of Assignment??

[fuzzybobble]

The bit about credit limit when it comes to credit cards can be written. "We will decide on your credit limit" That would be acceptable as a pescribed term for a credit limit, as many lenders don't set one until after the agreement is signed.

 

Another thing that might be worth getting the ruler out for, is the box around the holiday competition. To me it doesn't line up to well with the line and text under it. It seems to be off slightly to the right. But I have had 2 cans of lager, so it might be just my eyes and my brain not working properly.

[deepdebt]

Here's a few more bits and bobs of info I've found. I'm sure you'll find some bits useful.

 

 

clearly an application form. The header required by CCA is not prominent whilst the words 'application form' or 'credit card application' are very prominent.

It appears to be unenforceable because it is an application form and not an agreement. Also unless you received the rest of the information required by CCA (eg T&Cs, statement of account), the creditor has not complied with the Act and if the deadlines have passed they are in default.

 

We've only just received these doc's (March). We CCA'd in January and sent a 'Account in dispute +S10 notice' letter in the middle of February as 1st credit was way beyond the statutory time limit, which 1st credit acknowledged a few days later with 'We acknowledge receipt of your complaint'. We have received no other paper work from them regarding our CCA request.

The doc's received are clearly labelled 'Your Priority Reservation Form' and thats what it is a Form. We now understand why the Halifax was only too pleased to sell this on to a DCA as its clearly unenforceable.

[deepdebt]

Did you ever get a properly served Notice of Assignment??

 

Hello ODC,

Well we got 2 scrappy bits of paper in the post in December which to us looked like a cut and paste job. I'll scan them in and post up asap in full colour (as there is none, not even the Halifax logo, all black/white).

[deepdebt]

A lot of creditors don't keep the deault notices, they just sent them out from a computer generated template. If they cannot produce one, then it means they cancelled the agreement without proof they ever sent a Default Notice. So they effectively cancelled the agreement and you owe nothing.

 

They cannot reissue one at a later date, as there is no live agreement to default on.

 

If they do produce a Default Notice, then it has to comply with certain things to be valid.

 

If they manage to produce a copy of the DN, then post it here, and we'll see what's wrong with it.

 

I found 3 things wrong with mine. 2 of which render it improperly served.

 

Never received anything that said 'Default notice' on it from Blair, Oliver and Scott or the Halifax. Hence wouldn't know what one looks like. just got to do a little job for ODC so back a bit later.

[cymruambyth]

deepdebt, sorry to hijack but,

fuzzy I've being trying to find out about Default notices without any success. Can you confirm that if I've received my SAR and there are references to a Default notice, but no copy supplied, that the agreement cannot be enforced? Also if this is true, is there a regulation or something that cab be quoted.

Thank you

[fuzzybobble]

If they have revealed they sent one, then they should be able to provide a copy of it. If they can't provide a copy of it, or proof of when it was sent, then it means they cancelled the agreement and you owe nothing.

 

I don't have the actual section of the CCA'74 for that bit, but Banker_Rhymes_With should be able to help you if you send him a PM. He's been working on a case involving dodgy DN's for a while now, so it's likely he'll have what you require.

[deepdebt]

Did you ever get a properly served Notice of Assignment??

 

Hello ODC,

This is what we received in the post (full colour):-

 

Then at the start of the New Year we received this in the post:-

 

 

Over to you ODC, hope these are OK scans.

[manchester1]

Subbing, interesting i have seen similiar from credit 1 somewhere else ,and the conclusion was that they are creating these docs from there premises?

 

Manc1

[babybear39]

Subscribing...