Discussion on enforceability of agreements

[pt2537]

Hi Steven4064 and Pompeyfaith

I have a credit card with Halifax Card Services. I sent the agreement to be checked by the usual loan sharks out there and it came back that there were a number of areas on the agreement which were unenforceable. As such a firm of solicitors wants to take Halifax on under a CFE arrangement (although the document looks dubious to me and I could end up paying out a lot of money if I were to lose). Also the solicitors want me to take up an insurance policy to cover legal costs, and they say it wont cost me a penny. I have written to halifax to tell them that I think the agreement is unenforceable and asked for a copy of my original agreement. They said they would not provide me a signed copy of my agreement but supplied me with their version of the agreement. I took the card out in October 06. I noticed on the agreement they have provided - that it is not the same as the copy I have.

Is this card enforceable and what would you do next?

Hi,

 

I work for a law firm and i think that you may have slightly missed a few important points

 

A CFE (actually its CFA) is a Conditional Fee agreement, this is essentially No WIn No Fee

 

if you take this to trial then your representatives will recover the costs from the other side, if you lose you will not pay a penny.Many solicitors will work on a CFa for a variety of claims so they are rather common.

 

The Legal Expense insurance is normal too, it will protect you from costs of the other side if your case is lost. i would expect that again, if you lose there is nothing to pay and that if you win, under the rules of the court your solicitors will recover the money from the other side.

 

It is very dangerous to take your case on if you do not fully understand the law, rules of the court, proceedures etc and i would point out that if you do this yourself, you must make sure you are competent at representing yourself in court as if you took on the case yourself, you would on complexity groiunds fall into the fast track as a minimum and would be liable to the othersides costs if you lost the case

 

It may be worth looking at what youve been sent

[underdog13]

Hi Deborah Lillis,

 

Is it possible for you to tell us who the company are and what they charge for the insurance policy? It might help a lot of people on here:)

[photoman]

Hi Steven4064 and Pompeyfaith

I have a credit card with Halifax Card Services. I sent the agreement to be checked by the usual loan sharks out there and it came back that there were a number of areas on the agreement which were unenforceable. As such a firm of solicitors wants to take Halifax on under a CFE arrangement (although the document looks dubious to me and I could end up paying out a lot of money if I were to lose). Also the solicitors want me to take up an insurance policy to cover legal costs, and they say it wont cost me a penny. I have written to halifax to tell them that I think the agreement is unenforceable and asked for a copy of my original agreement. They said they would not provide me a signed copy of my agreement but supplied me with their version of the agreement. I took the card out in October 06. I noticed on the agreement they have provided - that it is not the same as the copy I have.

Is this card enforceable and what would you do next?

 

Further to PT's comments about the insurance.

 

Such a policy is deemed as being "self insured".

ie:

You do not actually pay the premium up front, it is only paid out upon conclusion of the trial.

If you win, the premium for the policy is then recovered from the other side.

If however you lose, the policy covers you for any costs you may have to pay..... and also the policy pays it's own premium.

 

 

 

It's a pretty bizarre concept, and I cannot fathom how they make any money with such.... perhaps PT could explain ?

 

I can only presume that the insurers are very careful about which cases they accept to insure, ie: only those they think have a good chance of winning.

 

If you decide to go down the solicitors route, then when choosing ensure they have the right credentials, and are members of the relevant bodies.

 

Again PT may be able to comment on which bodies etc and how to determine this?

 

PM

[pt2537]

yep, its on whats called a staged premium when the claim is first issued the costs are say £800, then as the litigation progresses it gets more and more, depending upon the risk.

 

the premium is recovered from the other side as they are liable for the costs of the winning side

 

if you lose then the policy underwrites itself so there is nothing to pay

 

thats it in a nutshell

[deborah lillis]

Hi,

 

I work for a law firm and i think that you may have slightly missed a few important points

 

A CFE (actually its CFA) is a Conditional Fee agreement, this is essentially No WIn No Fee

 

if you take this to trial then your representatives will recover the costs from the other side, if you lose you will not pay a penny.Many solicitors will work on a CFa for a variety of claims so they are rather common.

 

The Legal Expense insurance is normal too, it will protect you from costs of the other side if your case is lost. i would expect that again, if you lose there is nothing to pay and that if you win, under the rules of the court your solicitors will recover the money from the other side.

 

It is very dangerous to take your case on if you do not fully understand the law, rules of the court, proceedures etc and i would point out that if you do this yourself, you must make sure you are competent at representing yourself in court as if you took on the case yourself, you would on complexity groiunds fall into the fast track as a minimum and would be liable to the othersides costs if you lost the case

 

It may be worth looking at what youve been sent

 

Hi

How do I send you a copy of what I have been sent from the lawyers? The document is 6 circa pages in all

[deborah lillis]

Hi

How do I send you a copy of what I have been sent from the lawyers? The document is 6 circa pages in all

[underdog13]

yep, its on whats called a staged premium when the claim is first issued the costs are say £800, then as the litigation progresses it gets more and more, depending upon the risk.

 

the premium is recovered from the other side as they are liable for the costs of the winning side

 

if you lose then the policy underwrites itself so there is nothing to pay

 

thats it in a nutshell

 

Amazing! Thanks for clarifying that PT, I had no idea it worked like that. As long as one can find a competent solicitor, it seems like a win-win situation to me. Infinitely preferable to battling the opposing sides legal team on your own.

[moh786]

Can some help i just recieved an N149 Allocation questionnaire, i wanted some help how to fill it. i sent the defence from steve4064 as this thread. I have request documents under CPR 31 but no reply yet can some advise me

[cappuccino]

Hi Everyone, I have just recieved my CCA from cap1, I cant see any prescribed terms stating credit limit or manner in which it will be determined...is this a non enforceable agreement, it looks more like my application for the card??

 

[joneseyblod]

For a fixed-sum loan, the rate of interest is not a prescribed term in schedule 6 (precribed terms relating to s127) unless the agreement falls within one of the exceptions is para 9 of schedule 1, which this one does not.

 

So, cappuccino, I don't think you will get anywhere challenging this agreement - MHO

 

It is a prescribed term for credit cards though isnt it?

 

If so, if they only include the APR's for purchases, cash withdrawals and balance transfers then could it be unenforcable under s127

[castor1952]

Hello,

Hope this is right thread on enforceability matters generally, if not apologies. My partner has a bank loan pre 2007 which included PPI and she cancelled it within the 30 days cooling off period and carried on paying the main loan. What I am not sure about is should the bank have sent her a new agreement as the original agreement is unenforceable in that prescribed terms are inaccurate as the 'total credit' of £10,300.00(is this a prescribed term) includes the cancelled PPI premium. But the agreement does have 'main loan' correctly stated at £8150.00; APR 8.5% and main loan at £99.49 x 120 months so are the precribed terms correct after all and are the banks or credit card companies under no obligation to redraw the agreement if the PPI is cancelled? Anyone come across this before?

[steven4064]

We need to see the agreement castor - can you post it (personal details removed, of course)?

[Muffintop]

Hya, MBNA are getting quite heavy with me now, daily threatening type letters. I am beginning to brick my decision somewhat in insisting on seeing the original and have made a cpr pre court disclose recently, I do have a thread muffintop v mbna and I have posted up what they have sent me on this thread a long while back. I feel I now need to make a decision. pay em what I owe from dec 08 or dig my heels in and insist what you see here is just a tear off slip and not an enforceable agreement due to discrepancies of font size, font style and the pieces of paper being separate rather than one doc within 4 corners etc etc.

Would you guys take one more look for me as its an appropriate thread to post it up.

 

http://i369.photobucket.com/albums/oo137/skeggs885/mbna/mbnasign2.jpg

http://i369.photobucket.com/albums/oo137/skeggs885/mbna/mbnasign1.jpg

[steven4064]

MT

 

It all hinges on whether the 2 pages are front back of the same piece of paper or not. I can't tell from the images posted. You will need to deciode that.

[landy_alert]

Hi everyone,

 

With a little help from son at uni - hopefully I now have photobucket sorted!!

 

These are pics of OH's first MBNA CCA - we are still waiting for the second one - 40 days have now passed and no sign of it.

 

MBNA1 picture by landy_alert - Photobucket

 

MBNA1a picture by landy_alert - Photobucket

 

MBNA1b picture by landy_alert - Photobucket

 

Thanks very much in advance for your help (and also to Caro, for moving my posts to here!),

 

Landy

Edited March 2, 2009 by landy_alert
post moved so adapted text.........

[landy_alert]

Hi again,

 

this is OH's agreement for a Lloyds personal loan if anyone would like to take a look please -

 

Lloyds2 picture by landy_alert - Photobucket

 

 

http://i664.photobucket.com/albums/vv5/landy_alert/lloyds2.jpg

http://i664.photobucket.com/albums/vv5/landy_alert/lloyds33.jpg

 

Many thanks,

 

Landy

 

P.S. Thanks again for moving post, Caro x

Edited March 2, 2009 by landy_alert
Post moved so text adapted.....

[Muffintop]

Thankyou Steven, I can see inconsistencies in the font size and font style in the two pieces of paper, and think this is a microfiche.. if I have reasonable suspicion to doubt it is the original is that enough to request the cpr pre court disclosure (already done) and if this comes up with nothin ask for it to go to court for them to show me the orig? I dont want to be seen as trying to waste courts time but this looks like a tear off slip and I want a copy in the format we usually expect ie a full document with everything within the whole doc, if they have this I cant understand why they would send a tear off slip type doc.... If I want to take it to court b4 them how do I do this.... by issuing an N1? at local cc?

[steven4064]

If I want to take it to court b4 them how do I do this.... by issuing an N1? at local cc?

Yes, but on what grouynds would you be taking them to court?

[Muffintop]

WELL this is where im not sure and for me is the whole crux of what im doing... im not happy to just sit back 6 years i want it done one way or the other... i thought i would be taking them to court on the enforceability of a full executed agreement? and non compliance with my cca as i do not believe what they have sent me is a true copy

 

am I missing something here, do people not push it forward to court or do they wait to be taken to court???

[caro]

I've just moved landy alert's posts but because she's been waiting awhile they're in posts 265 and 266 above if someone would kindly take a look.

 

Thanks

[underdog13]

Hi everyone,

 

With a little help from son at uni - hopefully I now have it sussed!!

 

MBNA1 picture by landy_alert - Photobucket

 

MBNA1a picture by landy_alert - Photobucket

 

MBNA1b picture by landy_alert - Photobucket

 

Thanks for your help,

 

Landy

 

The t&cs do not seem to match the other document at all. Another MBNA cut and paste:-x

[the_shadow]

WELL this is where im not sure and for me is the whole crux of what im doing... im not happy to just sit back 6 years i want it done one way or the other... i thought i would be taking them to court on the enforceability of a full executed agreement? and non compliance with my cca as i do not believe what they have sent me is a true copy

 

am I missing something here, do people not push it forward to court or do they wait to be taken to court???

 

Problem is muffintop the onus is on you to prove it if you take them to court rather than the other way around if they take you, increases the risk in my opinion. Thats not to say its wrong, it comes down to how confident are you that your agreement is invalid and can you explain that sufficiently in law to the judge.

[landy_alert]

Thank you for your opinion, UD and thanks also to Caro for moving my posts to here!

 

I would be most grateful for any advice on their enforceability.

 

Regards,

 

Landy x

[f1owers]

Hi

 

I received this from Halifax on Saturday following a SAR request I made.

 

Halifax SAR picture by f1owerss - Photobucket

 

The Visa application form is from the Leeds Building Society who originally had the account. At some point it was changed to the Halifax and a couple of years back changed from Visa to Mastercard.

 

It is pretty much illegible and I would have thought chances of the original being in existence is pretty slim - bearing in mind it is now a different bank dealing with it.

 

Top right hand side does appear to have something about payments but there is nothing about a credit limit - only that it will be determined. Further squinting shows that there could be references to "condition 10" - Heaven knows what that is.

 

It appears to be one of the A4 pieces of paper that is folded up into three and then posted. Back of it just has Leeds address and some extremely faded notes - cannot be read but does not seem to have anything about late payment charges etc. Can see heading for safeguarding pin, refunds and cardholder claims, authorised users, variation of agreement, credit cover and general.

 

Has my signature on it dated October 93 - no signature for and on behalf of the Leeds.

 

Any thoughts on agreement or how to proceed. Is the agreement enforceable? How can I go about asking for a clear legible version?

 

Thanks

[castor1952]

Thanks Steven4064,

Attached is agreement as requested.

 

Edited March 2, 2009 by castor1952