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Davey vs Halifax/BOS/Cabot

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This is all mixed up together with my main thread here:

 

http://www.consumeractiongroup.co.uk/forum/mbna/57846-debt-written-off-due.html

 

But it's time to branch off and have a dedicated thread so...

 

BASICS:

 

Credit Card: Start Date June 2006

 

Got into financial difficulties and had all the usual 'pay now' and threats etc etc

 

Eventually asked for a copy of the credit agreement under the consumer credit act 1974 (s77-79) at the end of March 2007.

 

Dear Madam,

With reference to the above account I would be grateful if you would send me a copy of this credit agreement and a full breakdown of the account including any interest or charges applied. I understand that under the Consumer Credit Act 1974 -sections 77-79-, I am entitled to receive a copy of any credit agreement and a statement of account on request. I enclose a payment of £1 which represents the fee

payable under the Consumer Credit Act 1974. I understand a copy of any credit agreement along with a statement of account should be supplied within 12 working days.

I understand that under the Consumer Credit Act 1974 creditors are unable to enforce an agreement if they fail to comply with the request for a copy of the agreement and statement of account under these sections of the Act.

 

Sent by recorded delivery. Cheque cashed. No response.

 

2 months later it was passed to Blair, Oliver and Scott so i CCA'd them in June. Again recorded delivery and they cashed the cheque. No response apart from lots of computer generated threats:

 

http://i157.photobucket.com/albums/t42/davey77_2007/2copy.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/1copy-1.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/3copy-1.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/6copy.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/5copy.jpg

 

Needless to say through all this i was informing them that the account was in dispute and they could not demand payment until my CCA request was complied with etc. As always with BOS.. all my letters were ignored.

 

Then they passed it to EOS Solutions although they are they same people. Otherwise why use the same letter head?

 

http://i157.photobucket.com/albums/t42/davey77_2007/7copy.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/EOS.jpg

 

Complaint to the FOS in September 2007.

 

I eventually had a personal response from Halifax. Apparently my March and June CCA's never reached them? Odd considering they were signed for and the £1 fee cashed both times. The explanation? 'Lost in Transit'.

Pity they didn't take notice of all the other correspondence asking for the agreement then eh. Oh and my letter of the 24 Aug they mention. That was an LBA.

 

http://i157.photobucket.com/albums/t42/davey77_2007/HalSimp.jpg

 

Of course i replied to that letter (3 times) telling them they cashed the cheques and giving the cheque numbers and copies of the recorded delivery signatures. Guess what.. no reply.

 

When did i receive paperwork towards the March CCA request in the end? Christmas eve that year (2007).

 

http://i157.photobucket.com/albums/t42/davey77_2007/HalA.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/HalB.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/HalC.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/HalD.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/HalE.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/HalF.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/HalG.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/HalH.jpg

 

In Jan 2008 is was passed to Wescot.

Sent various letters to them with the usual account in dispute etc. Here's what i had for the most part:

 

http://i157.photobucket.com/albums/t42/davey77_2007/Wescott.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/Wescot18jan.jpg

http://i157.photobucket.com/albums/t42/davey77_2007/1copy.jpg

 

This last letter asked for a copy letter from the FOS proving i had a complaint lodged with them. So i did just that.

 

And in March 2007 wescot said bye bye:

http://i157.photobucket.com/albums/t42/davey77_2007/Halifax.jpg

 

In March 2007 i received the following:

 

Halifax_agreement1.jpg

Halifax_Agreement2.jpg

 

No lenders signature so Improperly Executed. Not the strongest of arguments but that will do me after the run around they have given me.

Also has page numbers at the bottom. These two are pages 3 and 4 out of 8. What's on the other 6? hmmmm

 

Around this time i had a new DCA take it up. Moorcroft. Not a very bright bunch:

 

company.jpg

 

http://i157.photobucket.com/albums/t42/davey77_2007/PreviewofDSCF7425JPG.jpg

Next letter said the agreement had been sent already.

 

Had lots of various different T&Cs docs but nothing further with signatures on it. Moorcroft couldn't even be bothered to send different letter than before and one day it was call to discuss, the next was legal action in 7 days and later on call to work out a repayment plan etc etc etc

 

In July the FOS did their usually thing:

 

FOSHalifax.jpg

FOSHalifax_0001.jpg

FOSHalifax_0002.jpg

 

End of July i did what you are not supposed to do and sent a Cheque for about 20% as F&F (without arranging it with them first) along with this letter in part:

 

....."

I am, however, prepared to forego further unnecessary communication and the need to remind various Debt Collection Agencies of the Law and their legal obligations towards me by offering Halifax Full and Final Settlement on the above account in the sum of £208.52 (two hundred and eight pounds and fifty two pence) which represents 20% of the alleged amount owed.

 

The terms of this arrangement should it be accepted are as follows. 1. Any obligation to pay on the remainder of the account is discharged in full and written off permanently leaving a balance of £0.00 (Zero.) 2. Any defaults, remarks or late payment markers or any wording relating to this account are removed from all credit reference agencies. 3 Any Debt Collection Agencies currently pursuing this account should be informed that the account has been discharged in full and my details removed from their files.

 

As the agreement is not properly executed Halifax has never had my permission to process my data therefore the credit file information should be removed in full upon acceptance deposit of the above full and final sum.

 

I enclose therefore with this letter a cheque (Number ******) for the above mentioned sum of £208.52p which, upon being cashed by Halifax will be deemed acceptance of the above terms in their entirety with no exceptions.

 

If you do not accept this limited offer of full and final settlement and the terms dictated above you MUST return the enclosed check at the earliest opportunity and begin legal proceedings against me thereafter, as it not my intention to pay any further moneys towards an improperly executed, and therefore, void agreement. Should you take this course of action i give notice that i will ask the Court to return all UNLAWFUL interest and charges levied and/or payments made towards the above account.

 

And i will also be requesting detailed information as to the relationship and costs involved between Halifax plc and their appointed Debt Collection Agencies. Specifically the behaviour of Blair, Oliver and Scott (and other DCAs) and their blatant disregard for OFT Debt Collection Guidance and harassment suffered over several months. Of which i have detailed records to that effect.

 

My position as a full time carer without assets on carer allowance has not changed and is unlikely too in the long term therefore I am sure the court would agree that any moneys returned to me would be beneficial at this time.

 

This offer is limited as i have other pressing accounts to deal with at this time therefore i expect a reply within 7 days of receipt of this letter either returning the enclosed cheque with the intention to there after issue Court proceedings or confirmation that is has been accepted and/or cashed in full as stated and therefore the terms of which will be carried out at the earliest opportunity.

 

Yours sincerely,"

 

At the end of August 2008 the cheque (along with original letter) was returned stamped 'payment not accepted'.

 

Nothing else happened until Dec 2008 when it was sold to Cabot:

CIMG1569.jpg

 

Notice of Assignment received in the same envelope as the above so write to Halifax twice and got a confirmation letter eventually:

http://i157.photobucket.com/albums/t42/davey77_2007/Halifax-1.jpg

 

Anyway, in Dec 08 i sent a CPR 31.16 letter to Cabot. Anything they would rely on in Court based on my belief the agreement was improperly executed etc.

 

Their reply:

Cabot31Dec.jpg

 

Along with this received a few days apart addressed to the occupier which my mum opened. (Persuaded her it was just an error and nothing to worry about.)

 

http://i157.photobucket.com/albums/t42/davey77_2007/CIMG1735.jpg

 

So i replied:

 

"

Dear Sir/Madam,

In response to your letter dated 30 December 2008 in which you acknowledge my request under Pre Action Protocols and Part 31.16.

 

For your information my request was not issued under the Data Protection Act (DPA) and therefore the 40 day time limit you have stated does not apply in this instance. I had previously asked for the documentation in question to be supplied by the 12 Jan 2009 but am prepared to add an extra 7 days as a courtesy measure for you to comply bringing the deadline to the 19th Jan 2009.

This should give Cabot Financial (Europe) Ltd ample time for such a straightforward request to be complied with and to show my reasonable intentions at all times should this matter proceed to Court.

 

In reference to your communication dated 30 December 2009. The ‘Occupier’ of the above address is well known to your organisation and i can only assume your intentions for such a communication (which clearly should be addressed to me personally) is to involve third parties in opening my correspondence at this address.

 

In future please only address further letters to me personally and by name as i should not like to complicate matters and involve the Information Commissioners Office with a formal complaint in regard to the DPA at this stage."

 

Quick reply from Cabot to say as far as they are aware there are no current litigation proceedings therefore the Civil Procedure Rules bear no relevance. Treating my CPR as a DPA and could take 40 days, or longer.

 

SO replied with the following:

 

NOTICE OF INTENDED LITIGATION

Dear Mr Perring,

 

In reference to your letter dated 13 January 2009 and received 15 January 2009 and also to your communication dated 30 December 2008 in which you acknowledged my request for Pre-Litigation information under the Civil Procedure Rules (*CPR*) (Pre Action Protocols and Part 31.16).

 

You are correct in that there are no current litigation proceedings underway regarding this account but my request for disclosure is prior to any Court Action I may be forced to instigate therefore the fact Legal Proceedings have not commenced does not negate my request for Pre Litigation information.

 

It seems you may be unfamiliar with or have some misunderstandings as to CPR protocols and therefore I quote the relevant text for your benefit:

 

Disclosure before proceedings start: 31.16

 

1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started.

(2) The application must be supported by evidence.

(3) The court may make an order under this rule only where –

(a) the respondent is likely to be a party to subsequent proceedings;

(b) the applicant is also likely to be a party to those proceedings;

© if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and

(d) disclosure before proceedings have started is desirable in order to –

(i) dispose fairly of the anticipated proceedings;

(ii) assist the dispute to be resolved without proceedings; or

(iii) save costs.

 

(4) An order under this rule must –

(a) specify the documents or the classes of documents which the respondent must disclose; and

(b) require him, when making disclosure, to specify any of those documents –

(i) which are no longer in his control; or

(ii) in respect of which he claims a right or duty to withhold inspection.

(5) Such an order may –

(a) require the respondent to indicate what has happened to any documents which are no longer in his control; and

(b) specify the time and place for disclosure and inspection.

 

For the complete avoidance of doubt I have for your benefit headed this letter “NOTICE OF INTENDED LITIGATION”. You are therefore given Formal Notice of my Intention to commence legal proceedings should you fail to provide the relevant information.

 

It is quite clear that my request for information to date was neither a request under the Data Protection Act (*DPA*) or pursuant to the Consumer Credit Act 1974 (*CCA1974*). Relevant documents requested should certainly comply with aspects of the CCA1974 in form and content if possible but again, the request was made pursuant to the CPR only, and I require a copy of any agreement held in relation to the above credit card account to assess if it was properly executed and to evaluate the merits of my case and therefore possibly avoid wasting the Courts valuable time.

 

Any further correspondence that refers to my request under the CPR as requests pertaining to either the Data Protection Act or as a Subject Access Request will be considered an attempt to avoid Pre-Action Protocols and therefore only read and filed for reference but not responded to directly.

 

Any other correspondence referring directly to the CPR request or other matters of relevance will, of course, be replied to promptly but please note that as i have already given Cabot Financial (Europe) Ltd ample time to supply this information i am only prepared to allow a further 2 days (for postage delays) past the deadline of the 19th January 2009 before deciding upon the next appropriate course of action.

 

You therefore have until 4pm Wednesday the 21st January 2009 to comply in full.

 

Yours sincerely,

 

No reply so...

 

"

FORMAL REQUEST FOR INFORMATION

CPR part 31.16

Dear Mr Perring,

On 22 December 2008 I wrote to your organisation requesting that you supply me a copy of the agreement for my account. This correspondence was sent via recorded delivery and received by Cabot Financial (Europe) ltd 24 December 2008. My request extended to the full original contract relating to the above account.

 

I enclose a copy of the letter which was sent and further correspondence on the matter for your information.

 

I note that the deadline stipulated (21 January 2009) has passed and, to date, I have not received a satisfactory reply from your organisation nor have I received a copy of the agreement 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 as, according to the Notice of Assignment I have in my possession, I understand Cabot Financial (Europe) ltd have acquired the above account and are the Legal owners and deemed to be ‘The Creditor’. Consequently Cabot Financial (Europe) Ltd should have all the necessary documentation required for full enforcement of said account otherwise your organisation would surely not have requested contact and demanded monies without verifying the validity of said account.

 

Therefore I would ask that you provide me with a copy of the contract which bears my signature, as well as the signature of the Original Lender as I require the complete document with all its parts.

 

The reasons why I require this information are clearly set out within previous correspondence, but for clarity I require this document, in part, 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. I wish to assess my rights as to the reclaiming of unlawful interest and charges and to ascertain the documentation’s validity for other purposes.

 

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 do 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 the Torquay and Newton Abbot County Court for an order made under the provisions of CPR 31.16 ordering you to disclose the documents which I have requested.

 

*If this order is thereby granted, I understand failure to comply would be considered a Contempt of Court.*

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 Thursday 19 February 2009 (thus allowing a further 28 working days and a total of two months since my original letter was received) that you will comply with my request. Establishing my reasonable intentions at all times and allowing what I believe to be, and I am confident a Court would agree, is a generous and fair amount of time for you to comply with my request.

 

If you will not comply, or have no intention of doing so, please provide your satisfactory explanations in writing.

 

Yours sincerely,"

 

To which they said:

 

CAbot.jpg

 

Last communication from Cabot was:

 

Cabot3.jpg

 

 

For now i am leaving this alone until i can sort other matters out. I certainly won't be accepting anything unsigned as an agreement of any kind and even the previous docs sent to me that are only improperly executed won't make me budge :rolleyes:

 

Cabot have bought the account therefore probably paid 20p in the £1 for it. Hopefully that will give me an advantage later on depending on what they eventually send me.

Always a small chance the original has been shredded. Watch this space...

Edited by davey77

:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

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Hi davey77

 

Re the T&C's above, I've just received these in relation to an 80's credit card alongwith the CCA, did anyone ever comment about these being legal in relation to your alledged agreement.

 

now subbing, thanks.

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Subbed


Check out the threads below for updates on the DCA's that I am dealing with.

 

GE Money/CL Finance/Howard Cohen & Co - AND - Aktiv Kapital/Appleton Massey Solicitors - IN COURT

Cabot x 2 for Vanquis & Hitatchi - DEFAULTED ON CCA REQUEST

Lowell for Capital One - CANCELLED DEBT!! Trying to get Default removed now

Moorcroft x 2 for Halifax Loan & Bank Account - RETURNED TO HALIFAX

Wescot for Halifax Bank Account - RETURNED TO HALIFAX

Cap Quest for Argos Card - RETURNED TO ARGOS

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Hi Davey

 

your credit agreement is the same one i have for AQUA card which is also owned by halifax,,mine has not been signed either by halifax...and is exactly the same word for word..i have pages 3 and 4 no others !!

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Hi davey77

 

Re the T&C's above, I've just received these in relation to an 80's credit card alongwith the CCA, did anyone ever comment about these being legal in relation to your alledged agreement.

 

now subbing, thanks.

 

Those pages are just the updated 'agreement' after being varied. I have several version of those.

The important factor to first look for is a signature. After that to check the Prescribed terms are on the same document as the signature and after that to check for a Lenders Signature. ;)

Edited by davey77
spelling

:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

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Hi Davey

 

your credit agreement is the same one i have for AQUA card which is also owned by halifax,,mine has not been signed either by halifax...and is exactly the same word for word..i have pages 3 and 4 no others !!

 

Hi BD,

 

My understanding of these docs is that they are improperly executed and only enforceable with a Court Order. Would have preferred irredeemably unenforceable but can't have everything.

Certainly the reference to other pages means there are other parts to this 'agreement' and once Cabot (if Cabot) ever send me the same thing i will be pointing that out to them and if i am sure of my facts by then hopefully quoting the right regs. 'any other doc referred to within agreement' etc of which the exact quote i cant recall off hand at the mo.


:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

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... i will be pointing that out to them and if i am sure of my facts by then hopefully quoting the right regs. 'any other doc referred to within agreement' etc of which the exact quote i cant recall off hand at the mo.

 

78(1) of the Consumer Credit Act 1974: “shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it”.


:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

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Hi Davey

 

Just subbing, going down similar road, just got agreement after CCA - same as yours, can you point me in the direction of my next letter, or perhaps i should just ignore them until i'm sold?

 

You're doin good man.

 

Cheers

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Hi torilla, have you set up your own thread for Halifax?

 

If it's the same as mine then it has the missing lenders signature (improperly executed). Not the strongest argument to have but depends on your goals (reduced F&F maybe because they don't want to chance taking it to Court.)

 

Mine also contains references to missing pages (2 of 8 etc) which is an important aspect.

 

It took 2 yrs and several DCAs before mine was sold outright so takes a while to get that far.

You could just wait til it gets passed to a DCA then CCA them although it will (if we are talking Halifax) take a few months of junk from their in-house collectors Blair, Oliver and Scott before it gets passed to a DCA that might actually reply to anything you send.

 

Get your thread started up then folks can what you have sent, their replies to date etc.


:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

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Cabot have come up with the goods again. I expected them to take longer. Included in the post was the same as before: 2 pages, one signed (the 'agreement'), still referring to other pages that i have never received.

An up to date on signed agreement, statements and another statement from Cabot showing they are still adding £10 a month to the account. It now stands at £1070 compared to the £1040 when they bought the account in december.

 

No feedback directly from the Solicitor but they didn't take this up so assuming improperly executed is not a strong enough argument from their point of view.

 

Just woken up but a little unsure of how to proceed. I could pick it apart and the points would be:

 

1. Missing Lenders signature making it improperly executed.

 

2. Missing pages: Require pages 1,2,5,6,7,8 (“shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it”.)

 

3. Challenge the charges they are adding. "Refection of true costs etc". Any thing further i can add on this point?

 

Feedback and thoughts welcome.

 

Cabot_0001.jpg


:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

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These two pages are the ones in question. Although this time they have written the account number on the first page (that isn't showing) next to "your chosen card is: halifax one card *************".

 

Halifax_agreement1.jpg

Halifax_Agreement2.jpg

Edited by davey77

:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

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Hi Davey,

Just read through your thread and think you've done an excellent job explaining everything.

When i get as far down the line as you i will be using some of your letters if that's ok.

I too have a Credit Card Account with Halifax that BOS have been collecting on for some time now.

I have my own thread set up, but haven't had a reply yet to my latest post.

Is there any chance you could take a peek at this letter they sent me as i'm not sure how to reply.

At present all i've had from them in reponse to my CCA req is a copy of their current and old terms and conditions.

http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/183043-halifax-12-credit-card.html#post2060341

 

Really appreciate any advice you can offer

Thanyou Livis :)

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Hi, sure feel free to use my letters as you like. ;)


:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

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I have thrown this together in haste today so any thoughts welcome:

 

 

Dear Mr Perring,

Thank you for the documents and statements received today (24 Mar 2009) in relation to previous requests for information.

 

The important points to note in reference to the signature document which i received are in relation to the Consumer Credit Act 1974 requirements and are as follows:

 

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.”

In this respect the documentation supplied has discrepancies which render it Improperly Executed under the above requirements as there is no Lenders Signature/date present. It therefore fails under s61(a).

 

I also refer you to s127(3) CCA1974:

 

(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...

 

I also note the documentation refers to other pages within that document which would therefore form part of any full agreement and as such should also be supplied:

 

Section 78(1):

 

shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it”.

 

Therefore please supply the other pages referred to on the documentation, namely, pages 1,2,5,6,7 and 8.

 

For your information, Subsection 127(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 and the document in question is dated June 2006 and therefore prior to this amendment.

 

I also require an explanation as to the addition of charges which Cabot’s statement of account has brought to my attention. It seems Cabot have been adding approximately £10 a month to the account since it was bought from the Original Lender in December 2008. I therefore require a breakdown on what grounds these charges are levied, a justification of them and if they be based on a true reflection of actual administration costs incurred.

 

You may note that any £12 charges I have been previously penalised with are currently unlawful and i refer you to the OFT statement to that effect (credit card accounts currently having no bearing on the OFT test case which relates to Bank overdraft charges of which i am sure you are aware).

 

In order to make it clear to you that OFT did not give Creditors/Lenders or Owners of accounts permission to charge £12.00 I include these quotes from OFT:

 

We are not suggesting that default fees should be set at £12, and a court will certainly not consider that a default fee is fair just because it is below the threshold”. “We consider that a contract term is likely to be unfair if it requires consumers to pay more as a result of a default than the court would order them to pay if they were sued for breach of contract. This means that a default charge should not exceed a reasonable pre-estimate of the administrative costs that the consumer ought to have realised would be likely to be incurred or her card issuer in dealing with defaults”.

 

English Law is very clear in that the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract. Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd (1915) AC 79. Therefore, as Cabot have been assigned the rights and duties of the above account, any previous £12 charges that have been unlawfully applied are required to be returned. This amounts to a total of £48.00p.

 

I look forward to receiving the full documentation and payment at the earliest opportunity.

 

Yours sincerely,


:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

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Thanks! ;)


:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

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Davey, check the Notice of Assignment. Is it a printed on photocopied Halifax paper? Check the dates, the notification, I believe, should be from when you receive it the letter will probably have the date the debt was sold on it, but was inluded with Cabots own letter (on the back is their notification).

 

Check on assignment in a recent live thread. may be of help.


Advice & opinions given by spartathisis are personal, are not endorsed by Consumer Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.:)

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Davey, thanks for your very informative thread. I too have just recieved an identical CCA to yours and will follow in your footsteps with a view to make a reduced F+F settlement sometime in the future. I will start my own tread soon.


HSBC - Successfully Claimed back Charges & Interest £1265

Barclaycard Successfully Claimed back Charges & Interest £400

Abbey - Successfully Claimed back PPI £960

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I'll be honest... I'm not even going down the F&F route. If the agreement is invalid then the agreement for them to contact CRAs is also invalid. Therefore their only route is constant badgering via letter because I have never read of a case where the court has ordered the debt to be paid (unless someone can elighten me?).

 

Besides... all my debts go statute barred from July 2010 with no prospect of them taking me to court simply because they will not be able to produce a valid CCA.

 

I have a CCJ too with a company who have ignored my CCA request thusfar (over 5 weeks now) - as soon as I can afford the £75 fee I will be writing to the court to get it set aside!

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Hey Spartathisis.. i was suspicious of their NoA but had confirmation direct from Halifax it had been sold. S;)its me, what with my main account with Lloyds Bank (now in bed with Halifax.)

http://i157.photobucket.com/albums/t42/davey77_2007/Halifax-1.jpg

 

"me against them"..thanks. Good luck with your mission. ;)

 

"Vjohn82". Trouble is improperly executed can still be good enough to many Judges although Creditors are always worried that it won't be and they will lose out. Gives some leverage that way though.

wow July 2010 is not that far of! Nice!

 

I'm afraid there are instances where the debtor has been forced to pay based on little more than a scrap of paper.. or even less! For example.. and a very nasty example of what a 'debt/consumer hating Judge' can do:

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/179236-tragic-case-judgement-because.html


:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

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I would still check the threads on assignment. I am sure, but open to correction, that the final balance of the account should also be stated on the notification, did you acknowledge it? if you didnt put them to task to prove you recieved it (s136 Law of Property Act 1925). Do the dates differ on the one from Halifax and the one received via Cabot?

 

Just checking the letter Halifax sent you that is not a notice of assignment, if it is they got problems again as cabot informed you 18th dec 08 and the letter is date 20th jan 09, it looks like a response to a request confirming that the account has been sold.

Edited by spartathisis
more info added

Advice & opinions given by spartathisis are personal, are not endorsed by Consumer Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.:)

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I had the balance on the letter from Cabot and confirmation direct from Halifax they had no further interest in the account:

http://i157.photobucket.com/albums/t42/davey77_2007/Halifax-1.jpg

 

I'm happy to deal with Cabot and really don't want it passed back to Halifax which is now part of Lloyds and therefore would mean they could easily dip into my Lloyds account and take the cash out. I know there is the Property Act issue under such circumstances but from what i have read here no creditor complies with that aspect when off setting and although eventually i could sort it out in the mean time i would have no cash so for now i will keep these aspects under my hat shoud/if Cabot decide not to play ball.


:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

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See where u coming from with regard to LTSB, but Cabot contacted you in Dec 08 but letter from halifax jan 09. I would also query the wording, it makes no mention as to assignment (type etc).

 

I have just had total confirmation from MBNA (Cabot bought the debt off them) that they cannot provide a CCA ever as it no longer exists! Will contact me shortly to confirm my details purged. :)


Advice & opinions given by spartathisis are personal, are not endorsed by Consumer Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.:)

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Reply from Cabot to my letter (post 14). I haven't woken up yet but i really don't know what they are talking about for mo...

The have sent pages 3 and 4 (post 11) out of 8 (not 1,2,5,6,7,8 as requested) along with a more recent unsigned agreement showing the £12 charge.

 

CAbot_0001-1.jpg

CAbot_0002.jpg


:!: -Any advise I give is based purely on my own experience. It should not be solely relied upon as I am NOT a legal expert and any major decisions you make should not be based on my opinion alone -

HFC Bank - Davey vs HFC

Barclays - Monthly payments made

Cahoot - Agreement received, awaiting 2nd agreement after DCA.

MBNA1&2 - Agreements received. (Currently in limbo)

Halifax - Davey vs Halifax/Cabot

MINT - Davey vs Mint

Amex - Davey vs Amex

Cap1 **WON** £1,500 Written Off Davey vs Cap1

 

Never Sign Anything

 

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Hi....

 

It's just guff mate... it's virtually identical to the letter they sent me... in fact it's pretty much word for word.

 

Did the credit agreement they sent contain the prescribed terms?

 

If it didn't, like mine, then send them something like this...

 

I am pleased that you have quoted the appropriate sections of the Consumer Credit Act 1974 in highlighting why you think the “credit agreement” supplied meets the requirements of legal enforcement. It is precisely this Act, and the letter you have sent, which I will use to demonstrate why the agreement is unenforceable.

 

You have written:

 

“The terms and conditions have set out all the prescribed terms as required under the Consumer Credit (Agreement) Regulations 1983 and therefore there can be no argument as to the validity of the form and content of the agreement”

 

I will quote your own letter in dealing with this point:

 

“Section 61 of the Consumer Credit Act, which deals with the “signing of document” states

 

A regulated agreement is not properly executed unless

 

(a) A document in the prescribed form containing all the prescribed terms and conforming to the regulations... is signed both by the debtor [or hirer and by or on behalf of the creditor or owner]”

 

We both agree that a document has to contain the prescribed terms to be enforceable; this is because you have stated this point of fact in your letter and I have no reason to disagree. An agreement is indeed enforceable if it contains all of the prescribed terms. You have stated that the agreement contains...

 

“All proper legal and regulatory provisions, including prescribed terms”

 

And that because of this you are “perfectly in our rights to enforce the debt against you as your arguments are clearly unfounded and you have no basis for your dispute or claim for failing to pay the outstanding balance under the credit agreement”

 

 

For the purposes of s.61(1) and s.127(3) of the Consumer Credit Act 1974 and sch.6 of the Consumer Credit (Agreement) Regulations (1983/1553) the prescribed terms must be present; the exclusion of one of these renders the agreement unenforceable. The following are the prescribed terms required to make an agreement enforceable:

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

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-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) 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.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

 

For running credit account agreements, such as credit cards or store cards, B C and D apply.

 

The document fails to provide B (d), as there is nothing on the document to suggest a payment date, and C, as there is no APR or indicative interest rate percentage on the credit limit quoted. The document you have supplied does not meet these prescribed terms and therefore is unenforceable. Whether these prescribed terms are present on another document is besides the point, in order for a credit agreement to be enforceable it needs to have the prescribed terms on it and signed by both the debtor and the creditor.

 

You also made the assertion that:

 

“Section 127(3) of the Consumer Credit Act has now been repealed due to the Consumer Credit Act 2006, however, this is not retrospective to agreements commencing before 6 April 2007”

 

This is incorrect. Schedule 3 s.11 of the Consumer Credit Act 2006 states that the repeal of s127 (3) “has no effect in relation to improperly executed agreements made before commencement of section 15 of this Act”.

 

Now, it has been established that the agreement is not enforceable because it does not meet all of the prescribed terms. It has also been established that while s.127 was indeed repealed by the Consumer Credit Act 2006 it does not include agreements concluded before 6 April 2007. Therefore my position is the same was it was from my previous letter which you have referred to. I do not acknowledge this debt and I do not acknowledge the right of your company to hold this data about me. In addition, the right of your company to hold such data and present it to the credit reference agencies is a breach of the Data Protection Act 1998 as there is no implied right for you to be able to process my data.

 

Therefore my next step will be to write to the Information Commissioner and Financial Services Authority with a formal complaint about your conduct unless you cede your position and remove my data from your records.

 

Please let me know by response as soon as possible. Please note you are still in default of my original request for a copy of the Consumer Credit Agreement 1974 as the document you have supplied does not contain the prescribed terms. Therefore I do not acknowledge the debt because this was an application form for credit and not an executed credit agreement. This means my data should already have been ceased to continue processing and information removed from my credit file.

 

I trust I have set out my position clearly and I look forward to hearing from you forthwith.

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