1st Credit / Halifax CCA Response HELP!

[ukaviator]

Threads merged..

[amsgirl]

thanks x

[amsgirl]

Have sent my letters to 1st Credit and LCS. Now I need to do my complaints but I'm not sure what to say to the OFT. Can anybody point me in the right direction please x

[cerberusalert]

Just state that they are still pursuing the debt whilst it's in dispute & that they are harrassing you both on the telephone and by post.

[hackedoff1]

Just go to OFT now

 

These animals don't take any notice.

[amsgirl]

Ok me again with a further update!!

 

I sent off the above letter (thanks cerubsalert) to 1st Credit and LCS and this is what I have received back today:

 

 

Dear xxxx

Thank you for your letters of xxxx

 

We regret to inform you that section 78 CCA 1974 does not require 1st Credit Ltd to provide you with a true copy of the executed agreement as you appear to believe. It requires 1st Credit Ltd to provide you with a copy of the executed agreement as defined by the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983.

 

The obliged to provide you with that documentation is fulfilled by te provision of the terms and conditions, which are supplied to customers upon reissue or issue of their card by the original creditor, being printed on the card carrier.

 

The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 make it clear at Reg3 that the 'copy executed agreement' is not required to be an exact replica of the original agreement per se but a extract since it is allowed to omit certain information including any signature box, signature or date of signature.

 

For ease of reference I have enclosed an unedited copy of your agreement.

 

You have not specified upn which ground you rely for your notice under s10 of the Data Protection Act and therefore we do not consider this valid; furthermore this is not a valid request as it falls under the exemption in Schedule 2 section 2(a) of the act.

 

We have noted your comments regarding section 127(3) however this legislation has been repealed by the CCA 20 c.14 sch4 Para1 in Court. Therefore should this case be taken to court we would adhere to the judges discretion.

 

Furthermore we would advise you to seek proper advice from a regulated body such as the citizens advice bureau rather than using text from unregulated debt forums on the internet as they do not always provide the proper legal advice that is suitable for every case.

 

We respectfully request you contact our offics to begin repayment of your debt.

 

Yours Sincerely

 

Compliance Officer.

 

 

 

Can somebody pls advise me as to what to do next???? Are they correct in what they are saying and can they now enforce this through the courts?? They sent me my application form with a copy of the prescribed terms on a seperate sheet of paper again (see beginning of thread).

 

Many Thanks in advance xxxx

[amsgirl]

bump

[cerberusalert]

Send the muffins this back;

 

Dear Sirs

 

Account number

 

I write with regards to the above account with your organisation.

 

I respectfully request that you provide me by return a copy of the credit agreement which bears my signature. I require this as i have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed.

 

Obviously if the agreement is improperly executed I would be entitled to ask the court to consider the agreement and make a declaration of the rights of parties to the agreement.

 

I must stress this request is NOT made pursuant to section 78 Consumer Credit Act 1974 but is made pursuant to the Civil Procedure Rules ( Pre action protocols and Part 31.16) and therefore unsigned copy will not suffice, only a copy of the original contract in its unaltered form will suffice in these circumstances

 

Please confirm if you still hold a copy of my signed agreement and that you will provide me with this document.

 

I do not view this as an unreasonable request given that by supplying the document which I have asked for it will allow me to assess if my case has merit and will help to resolve matters possibly without the need to involve the court and will undoubtedly save costs on both sides.

 

I look forward to your reply and wouyld ask for a response by 4pm on XXXX Date ( Give 21 days to respond)

 

Yours,

Print name do not sign

[lilly white]

GOOD MORNING

 

WHAT ARE THEY TALKING ABOUT

 

We have noted your comments regarding section 127(3) however this legislation has been repealed by the CCA 20 c.14 sch4 Para1 in Court. Therefore should this case be taken to court we would adhere to the judges discretion.

 

 

LILLY

[lilly white]

WHAT WAS DIFFERENT

 

For ease of reference I have enclosed an unedited copy of your agreement.

 

LILLY

 

I BELIVE THIS TREAD SHOLD BE MOVED TO DCA FORUM

 

LILLY

[creditcardmug]

GOOD MORNING

 

WHAT ARE THEY TALKING ABOUT

 

We have noted your comments regarding section 127(3) however this legislation has been repealed by the CCA 20 c.14 sch4 Para1 in Court. Therefore should this case be taken to court we would adhere to the judges discretion.

 

 

LILLY

 

Good question, beats me, im not aware that s127 (3) has been repealed,

 

The whole letter is bu$$$$%T IMO.

 

For everyones reference here is section 127 (3)

 

(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]

As i understand it the Prescribed terms where not changed in any way by the 2004/1482 Ammendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreements executed before that date.

[cerberusalert]

I've got a suspicion they are alluding to Rankine Vs HBOS & Others, but as usual have got it wrong.

[maroondevo52]

amsgirl,

 

Do you want this thread moved to the DCA Forum as Lilly suggested

 

Regards.

 

Scott.

[amsgirl]

Not sure????? My dealings are with 1st Credit which is a DCA?? But the account in question is Halifax so not sure where this is best placed?

[creditcardmug]

Not sure????? My dealings are with 1st Credit which is a DCA?? But the account in question is Halifax so not sure where this is best placed?

 

I would, it will be seen by more people

[amsgirl]

I shall leave it up to you Thanks xx

[maroondevo52]

Ok, I'll move it, I agree with CCM, think you will get more input

 

Regards.

 

Scott.

[lilly white]

AMS

 

THATS BETTER I KEEP LOOSING YOU ON THE OTHER TREAD.

 

Well i have tried to read the terms and conditions i am working on the apr

and the interest charges etc.

 

IF I MAY SUGGEST THAT YOU READ IN THE LEGAL FORUM STARTED BY PT.

 

EGG AND WHAT I THINK IS WRONG WITH. I DO WARN YOU IT IS LONG AND DETAIL HOWEVER IT WILL HELP FOR THE NEXT PHASE OF THE BATTLE.

 

JUST AS A TASTER IF YOU LOOK AT THE SIG BOX IT WILL SAY

 

 

THIS CCA REGULATED BY ITS TERMS. SO WHAT TERMS WHOS TERMS IT IS A WAY OF THINKING HOWEVER VERY IMPORTANT

[lilly white]

Opps

 

Sorrey I Do Persume You Where Given A Noa By Halifax Do You Belive It Was Accurate.

 

Lilly

[lilly white]

A SEE HALIFAX AT IT AGAIN

 

Fair Trading (OFT) over Halifax’s current account, which claims to have a 0% overdraft even though it has a daily rate of at least £1.

 

The effective rate of interest at the government-owned bank soars the lower the overdraft — and works out at an annual percentage rate (APR) of a mammoth 365% for those who go just £100 overdrawn.

 

Currency brokers have also come under fire for advertising “commission-free” deals that can end up costing you more because exchange rates are so poor.

 

And consumers often fail to realise their 0% balance-transfer credit-card deal will charge interest if they exceed their credit limit or spend on the card.

 

RELATED LINKS

Horrors may be lurking in your bond fund

Here, we uncover the truth about three “0% deals”.

 

OVERDRAFTS

 

More than 70% of people who slip into the red have an average overdraft of less than £500, according to the OFT.

 

Halifax Reward account holders receive a £5 bonus if they pay in at least £1,000 a month, but are hit with charges equivalent to 146% for a £250 overdraft or 49% for a £750 overdraft, based on the £1 a day fee.

 

Halifax says on its website: “As we charge fees on this account instead of interest, the typical rate is 0% AER \.” However, the bank charges £1 a day on overdrafts of up to £2,500 then £2 above that, then £5 a day if you exceed your agreed overdraft limit.

 

“This 0% AER is very misleading,” said Dominic Lindley at Which? “At £1 a day, a £250 overdraft is equivalent to 146% APR. It doesn’t seem very rewarding to us.” Lindley said this was the first instance of daily charges for authorised overdrafts. The consumer group believes Halifax is either in breach of advertising regulations or is exploiting a loophole by charging fees, rather than interest.

 

OFT regulations state financial firms must stipulate a typical APR on products that have “any fees or charges payable”.

 

A spokeswoman for Halifax said: “This account is the first to reward customers simply for using their bank account. No charge is made if an account is brought into credit by the end of the banking day.”

 

TRAVEL MONEY

 

Some 44% of people think “0% commission” foreign-exchange services offer a free service, a poll of 2,146 people by Opinium Research shows. However, research by currency broker FairFX shows opting for commission-free deals could cost an extra 14% due to poor exchange rates.

 

On the high street, for example, NatWest in effect charges 4.09% for those buying euros and 5.21% for dollars with either £200 or £400 sterling. American Express charges corresponding rates of 4.66% and 5.22%, while the Travelex desk at Birmingham airport in effect charges 11.62% when converting £400 to euros and 14.26% for dollars with the same sum, although a transaction of that size is “commission-free”.

 

Stephen Heath at FairFX, said: “People think they are paying ‘0% commission’, but that couldn’t be further from the truth.”

 

CREDIT CARDS

 

Consumers are lured into credit-card deals advertised as 0% — but hidden in the small print can be hefty charges. Barclaycard Gold and Post Office Classic Visa charge 0% on balance transfers for six and 12 months respectively, but both levy interest at 19.9% on purchases — more than two percentage points higher than the standard credit-card rate of 17.7%, said Moneyfacts.

 

HIDE THE FORM

HAVE YOUR SAY

[amsgirl]

Yes I received a NOA from Halifax which if I'm being honest I think was sent by 1st credit. The phone calls have started again after a break of a few weeks!! Nothing else been sent via post though:)

[lilly white]

OK ams keep us posted

 

hope you are ok

[amsgirl]

It's been a while so here is an update in the 1st Credit Soap opera!!

 

Basically My parents offered to lend me some money to pay another Credit Card off which was only a small sum compared to the amount I owe 1st Credit.

 

This was done in May and was obviously shown on my credit file. Lo and behold a week or so later I get a letter from 1st Credit saying that they have noticed my financial situ has improved and that I should call them immediately to discuss!!! They did however state that they may be in a position to offer me a substantial discount of the full amount should I call them within 7 days.

 

They have been calling me and I answered and told them not to call me as the account is in dispute and I am awaiting my CCA. The muppet on the phone said I had already received my CCA so I told him i haven't and I asked them to send it out to me again as it must have been lost in the post.

 

I am still awaiting my CCA dated back in January!! They have sent me a copy of my application form (for the 3rd time) and the prescribed terms on a separate piece of paper and a load of terms and conditions photocopied and stapled together.

 

This account is STILL in dispute!! Does anyone have any advice on what letter I should send them this time! Grrrrrrrr

[lilly white]

AMS

 

PLEASE READ THIS I AM SURE YOU WILL ENJOY JUST IN CASE YOU MISS IT,

 

WE BELIVE IT WAS A HALFAX CREDIT CARD

 

_____

APPEARANCES:

For the Claimant: MISS GARDNER

For the Defendant: MR BERKLEY QC

__________

Transcribed from tape by

J L Harpham Limited

Official Court Reporters and Tape Transcribers

55 Queen Street

Sheffield S1 2DX

BANK OF SCOTLAND -v- ROBERT MITCHELL

1st June 2009

APPROVED JUDGMENT

JUDGE LANGAN:

 

1. I have to deal with an issue as to costs which has arisen on the informal discontinuance of an action.

 

2. The action was commenced on 21st May 2008. The claimant bank had, in December 2003, issued a credit card to the defendant, and the claim was for £15,417.23, being the amount said to be due on the defendant's account. Judgment in default, for a total sum of £15,727.23, was obtained on 4th July 2008. The defendant subsequently applied to have the judgment set

aside. That application came before District Judge Jordan on 29th January this year and was successful. The recitals to the District Judge's order say this:

"And upon the defendant's proceedings on the basis of a breach of

Section 61(1)(a) of the Consumer Credit Act, namely that the claimant

failed to comply with the requirements to give copies of all the

documents relevant to the agreement at the time of signing, and upon

the defendant contending that notwithstanding Section 65 of the

Consumer Credit Act 1974, Section 127(3) of the Act preventing the

enforcement".

 

After those recitals it is ordered the court sets judgment aside, and it is ordered that there be, "A determination of the issue set out above". Various procedural directions then follow.

 

3. What has been listed for trial today is, "The determination of issue", referred to in the order which I have just recited.

 

4. The agreement made in relation to the defendant's credit card was a regulated agreement within the Consumer Credit Act 1974. Section 61(1)(a) of that Act provides:

 

"A regulated agreement is not properly executed unless 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".

 

Having regard to the date of the agreement made in this case, which was prior to amendments made to the Act which took effect from 5th April 2007, the result of non compliance with Section 61(1)(a) would be that the credit card agreement would be unenforceable against the defendant, see Consumer Credit Act 1974 Section 127(3).

 

5. This morning I was informed by Miss Gardner, counsel for the bank, that the bank was withdrawing its claim against the defendant. This announcement has been accepted by Mr Berkley QC, who appears for the defendant, as equivalent to the service of a notice of discontinuance under the Civil Procedure Rules Part 38.3. By the Civil Procedure Rules Part 38.6.1:

 

"Unless the court orders otherwise, a claimant who discontinues is

liable for the costs which a defendant against whom the claimant

discontinues incurred, on or before the date on which notice of

discontinuance was served on the defendant".

 

Miss Gardner contends that the court should, "Order otherwise", and make no order for costs as between the parties. Mr Berkley contends that the presumption in CPR 38.1.6 should operate, and further that the order for costs to be made in favour of his client should be an order for assessment on the indemnity basis.

 

6. The thrust of Miss Gardner's submission is that the issue directed by the District Judge, and on which the evidence has been focussed, is whether the bank supplied the defendant at the time of signing the application form for credit with documents which contained all the terms of the agreement between them. I shall elaborate a little further on this. It has been the defendant's case that he was supplied with nothing more than the application form which he signed. It has been the bank's case that in accordance with the usual practice of the bank the defendant would have been, and must have been, supplied with other documents, including a pack which will have contained all the terms and conditions of the agreement made between the parties. Miss Gardner goes on to say that the defendant has at the last moment taken a new and radically different point, namely that the document signed by the defendant did not contain all the prescribed terms of the agreement. I must again elaborate on this. It is common ground that the only document signed by the defendant was the application form. It is also common ground that the application form did not, on its face, set out the prescribed terms of the agreement between the parties. The point which is treated by Miss Gardner as a

new point is dealt with in paragraphs 22 and 23 of Mr Berkley's written argument, and it will, I think, be more economical if I simply quote those two paragraphs in full rather than attempt,in my own words, to expand on them:

 

"The key words in Section 61(1)(a) are the reference to a document

itself containing all the prescribed terms, and conforming to the

regulations under Section 61. This language is clear and specific, and

ensures that mere reference to terms contained in another document

will not suffice. The document must contain the prescribed terms, just

as the signed document referred to in Section 127(3), which might save

the day, must however contain the prescribed terms. The construction

contended for by the defendant is entirely consistent with the language

of Section 61(1), and is also supported by Professor Good in his

encyclopaedic work - see Good & Consumer Credit Law and Practice

volume 2, 2B 5.121, and see also the comments at 2B 5.247. There the

learned author draws a distinction between the language of paragraph

(a) contain and paragraph (b) embody. It is respectfully submitted that

the court should adopt the same reasoning in determining this issue in

favour of the defendant, irrespective of whether or not it finds that the

defendant was supplied with documents other than the credit

agreement itself".

 

7. In my judgment, the point with which I have just been dealing is not properly to be characterised as a new point on which the bank can present itself as being taken by surprise. I refer to four documents. First, on 3rd November 2008, when the defendant was acting as a litigant in person, in the request to have the default judgment set aside he said this:

 

"As the court is aware, in the absence of all the prescribed terms being

embodied, it will render a document unenforceable in court. These

terms must be contained within the agreement, and not in a separate

document headed 'Terms and Conditions', or words to that effect".

Secondly, on 18th February 2009, solicitors, who were by then acting for the defendant, sent to the solicitors acting for the bank a copy of what they called an expert report setting out the reasons why the agreement was in breach of Section 61(1)(a), and they went on:

 

"As you are aware it is our client's position that at the time he entered

into the agreement he was not provided with a copy of the terms and

conditions governing the agreement".

 

If one goes to the so called expert's report, one finds that it is in effect an opinion prepared by another firm of solicitors, and the opinion contains the following:

 

"Based on the information provided, it appears that the prescribed

terms and conditions were not included in the document signed by the

borrower. The agreement would appear to be in breach of the

regulations in that it does not contain within the signed agreement itself

all of the prescribed terms".

 

Thirdly, that point having been taken on behalf of the defendant, it was robustly rejected by the solicitors acting for the bank in their reply of 19th March 2009:

 

"Our client has sought counsel's opinion on this matter and her view is

that the agreement is compliant. We note that your client is arguing

that at the time of signing the agreement, the application for a credit

card, he was not provided with the actual terms and conditions which

were contained in a separate document to the application. Whilst our

client accepts that the application itself does not comply with the

requirements of the Consumer Credit Act 1974, and only becomes

compliant by reference to terms and conditions, there are references in

the agreement to the conditions in which it states that they are provided

in the Halifax credit card application pack".

 

Fourthly, going back in time a little, on 4th March 2009, in the defendant's witness statement made for the purpose of the trial of the issue, at the very beginning of the statement, in paragraph 3, he said this:

 

"It is my position that the agreement is not enforceable by the claimant

as it has failed to comply with its obligations under Section 61 of the

Consumer Credit Act 1974 by failing to include within the document

that I signed all the prescribed terms".

 

8. The absence of further reference to the point in the evidence is hardly surprising, since the point is one of law, on which there was no controversy as to the facts.

 

9. Miss Gardner has given no reason for the withdrawal of the action. She is in no way to be criticised for the omission. She is bound to act in accordance with her instructions, and those instructions were presumably to say no more than she has in fact said. But this does not prevent me from drawing what is in my judgment the only inference which can possibly be drawn from what has happened, which is that the bank realises that if the issue were to be

contested it would either lose on the issue or be at serious risk of losing. There may be hundreds of similar cases and the bank would plainly not wish other defaulting customers to get wind of an adverse decision on the fundamental point which is embodied in the quotation from Mr Berkley's written argument, which I have already set out.

 

10. Accordingly, I conclude, without hesitation, that there is no reason for displacing the presumption as to incidence of costs which is ordinarily applicable in a case of discontinuance. The bank will pay the defendant's costs of the claim, subject only to any existing order for costs in favour of the bank not being disturbed.

 

11. Finally, I have to consider whether the costs of the defendant should be assessed on the standard or on the indemnity basis. In my judgment the assessment should be on the indemnity basis. The only realistic view of what has happened is that the bank has surrendered on a straightforward point of law, to which it has on several occasions been alerted by the defendant or his solicitors. A large commercial enterprise which proceeds with litigation in the face of warning signs of the kind which were erected here, adopts a high risk strategy. The point in question was a simple one. There was no relevant controversy as to the evidence. To choose to abandon the claim on the very day of the hearing is doing a serious disservice to the efficient administration of justice, and comes very close to constituting an abuse of process. At the very least, the bank's conduct of the litigation falls comfortably within the range of cases in which, on the modern authorities, an assessment of costs on the indemnity basis is appropriate.

__________

 

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