Halifax £12 Credit Card charges

[davey77]

That's a really badly put together letter isn't it. A jumbled mix of different template sentences thrown together in the hope you will go away.

 

"CCA does not prohibit collection activity when an account is in dispute". Well OFT Debt Collection Guidance does!

 

Hard to say but they have probably complied with S 78 in sending T&Cs. To be honest once you have done a couple of s 78 requests and either received T&Cs or an unsigned agreement then it's best to move on and ask in a different manner.

 

Have you looked at this thread:

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

 

As well as this one which had a quick result re the £12 charges:

http://www.consumeractiongroup.co.uk/forum/royal-bank-scotland/187177-mint-pay-back-12-a.html

 

What date is this agreement from and have you report them to TS?

[davey77]

"Office of Fair Trading Debt collection guidance

 

Physical/psychological harassment

 

2.5 Putting pressure on debtors or third parties is considered to be oppressive.

 

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 "

[davey77]

That's just the copy. The important point is the doc with a signature and that doc must have the Prescribed Terms embodied within the four corners of the agreement.

 

As said, they have probably complied with section 78 so now it's time to ask for the original, full, properly executed agreement.

 

As it 2004 then anything they send that does not contain your signature is not enforceable in Court. (They would need to produce that original document.)

 

The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557) at Regulation 3 allows the Signature box and signature to be omitted in a copy document but the copy document must contain all the terms off the agreement contained within the signed executed original document. However, I would ask them to provide a copy of the original signed agreement and although you accept that they can omit the signature box for the purposes of compliance with your request, you are fully aware that any challenge to the agreement in court would require the signed copy of the original agreement. Ask them to provide clarification on the status of any Original Credit Agreement and confirm either that they hold that original signed agreement on file or not.

 

Other than that i would look at the CPR route (in the link i gave).

[davey77]

TS will probably say that they have complied with your request but it's worth firing off a complaint to them anyway.

 

Doubtful they will include an original agreement (or agreement of any kind) in response to a SAR. They should in my view but often they don't bother. (Especially if they haven't got it anymore!)

 

I doubt this will go to Court and even if it does they try their best to get payment out of you for a fair while first (unless you have a property or merc parked in the driveway.) But even then, if they know they haven't got the original they will get nowhere.

 

Depends how urgent you feel it all is. If you are ok keeping the letters coming then reply sooner. If you want to leave it (and concentrate on other matters whatever they may be) then give it 6 weeks and write.

 

Id just state along the lines of the above as well as other info:

"you have failed to produce a document signed myself that contains the prescribed terms as per section 61(a) and section 127(3) of the CCA 1974.."

 

"...when an agreement does not include the prescribed terms as per section 61(a) of the Consumer Credit Act 1974 then the agreement is irredeemably unenforceable."

 

I refer you to the decision in Wilson v Hurstanger:

 

"...Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself:

they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them."

[davey77]

s61 CCA - Signing of agreement:

(1) A regulated agreement is not properly executed unless—

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

s127(3) CCA:

(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).

[davey77]

They tend to choose which sentences to ignore and/or comply with. Once you get the a response to the SAR, if you feel they haven't included anything they should then report them to the ICO.

 

If you get stuck with terminology just post the questions here for answer. There are no simple questions as we all had to start somewhere and a year ago i didn't know what S.A.R stood for.

[davey77]

Looks like a cut and paste then, as you say, nothing to link those 2 pages together?! And the difference in font adds suspicion.

 

If they could show (although not sure how they would) that the second page IS connected to the signature page then, with a missing lenders signature would make it improperly executed (not outright unenforceable).

 

They mention condition 8.2. If that wasn't included how can you know what it says?! (Or you!)

 

Also their choice of wording in the letter is odd to say the least. "Includes the credit agreement in an abridged form on the reverse".

 

Abridged: Shortened, cut down, condensed, censored.

In other words they have admitted there are other parts to this agreement that they have left out?

 

There is also the point to make that, (as i understand it although will need confirmation of this) the first page is headed 'Credit Agreement' and not a Credit Card Agreement as strictly defined within the Consumer Credit (Agreements) Regulations 1983 SI 1983/1553. Therefore you could argue it is invalid for any purpose linked to a Credit Card account.

Now how seriously a Judge would view that kind of 'minor' error and how you could use that in a valid argument is another matter.

 

I would get pt2537 or Steven4064 to look in and give their valuable advice before drafting a response to smellyfax.

[davey77]

personally i like to take a tougher more aggressive stance than that but it's fine and what ever you are most comfortable with. Nothing wrong with that at all.

 

Maybe you'll get a reply.. maybe not.. just sit back in the sunshine and see