Me against them CCA Halifax

[Braveheart12]

Can anyone advise me on the CCA and DN from Halifax?

[Braveheart12]

I have decided to try and gain further advise and clarifaction on my CCA and Default Notice by continuing my tread in the DCA Forum...see link below.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/211877-halifax-cca-default-notice.html

 

Thanks guys

[clemma]

The DN is definitely defective - have they terminated the account yet? If not, then keep quiet about this! They can not add charges on to a default notice, and they have not given you enough time to remedy (the date should have been at least the 14th May). If they terminate on the back of this DN then you will only owe the arrears - they cannot chase you for any further amount

 

As for the agreement - what they have sent is pretty solid - they do not need to state a credit limit. They can get away with "we will decide your credit limit". However, you should request the other pages, as you should have received these.

[clemma]

Oh, should add, if they do take you to court, then you have a good defence already with the defective DN - you will get all the help you need on here should it go that far.

[Braveheart12]

Thanks Clemma...hopefully I'll receive those missing pages and any other details of charges through my SAR.

[Braveheart12]

I have not recieved anything stating they have terminated the account yet. I was not sure if they had in effect terminated by passing the account to a DCA. Does this depend on whether or not they have sold it or not?

[clemma]

BOS are the in-house debt monkeys for Halifax so this will not have been sold. They will terminate at some point, so until then, mum's the word

[Braveheart12]

OK....Thanks:)

[diddydicky]

its quite a long time for haliffax- they usually terminate pretty quickly (in fact a day before their own deadline sometimes

 

are you SURE you have not had a TN?

[Braveheart12]

Yeah, I'm sure I have recorded and filed all correspondance. Although I have not received a TN the DN states "We will terminate our agreement with you and close your Credit Card Account."

[diddydicky]

then id be inclined to "sit it out"

 

any written demand for payment of the full account balance dated after their DN could therefore safely be taken as them having acted upon their DN and terminated the agreement (IMO)

[Braveheart12]

Thanks DD! BOS are demanding full payment on behalf of Halifax (although they are an house outfit).

[diddydicky]

if they are acting on behalf of halifax then halifax are bound by what they say or do on their behalf

[diddydicky]

this will give you some heart- it was an appeal by BOS against costs against them which they lost and were roundly criticised by the judge as you can see:-

 

IN THE LEEDS COUNTY COURT*Case No: 9LS70096

The Combined Court Centre

Oxford Row

Leeds

1st June 2009

Before

HIS HONOUR JUDGE LANGAN QC

__________

BANK OF SCOTLAND

(Claimant)

-v-

ROBERT MITCHELL

(Defendant)

__________

APPROVED JUDGMENT

__________

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 betweenthe 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.

 

Section I Other Information

If the court is in agreement, the defendant respectfully requests that special directions may be given as per the attached draft order.

 

The defendant proposes these directions in mind of the Overriding Objectives, and in particular the duty of the parties to help the court further them. The issues outlined below are the crux upon which this claim rests, and the proposed directions identify these issues and will allow them to be assessed in advance of the hearing so that this claim may proceed justly and expeditiously;

 

Without production of the requested documents, I am at a disadvantage and am unable to serve a proper defence. Failure of the claimant to supply the requested documentation will make the case much harder for the court to deal with as without production of the requested documentation will inhibit the courts ability to deal with the case.

 

The House of Lords in the case of Wilson*v First County Trust Ltd - [2003] All ER (D) 187 (Jul) made it clear in paragraph 29 of LORD NICHOLLS OF BIRKENHEAD judgment

 

29. The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is where section 61(1)(a), regarding signing of agreements, is not complied with. In such cases the court 'shall not make' an enforcement order unless a document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give

notice of cancellation rights in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and63, section 127(4) precludes the court from making an enforcement order.

 

should the claimant not have the documentation required to progress this case I suggest that there will be no case to answer

 

Therefore it stands to reason that these documents must be disclosed before this case can progress any further

 

Draft Order For Directions

 

1 The Claimant shall not later than 4:00pm on (date) (being a date 2 weeks from the date of the making of the case management directions) file and serve a verified true copy of each of the following documents mentioned in the Particulars of Claim

 

(a) the executed regulated consumer credit agreement made between the defendant and xxxxxxxxxxxxxxxxx under reference xxxxxxxxxxxxx together with any terms and conditions that applied to it,*.the original must be brought to hearing under cpr directions 16 paragraph 7.3*

(b) the default notice together with proof of service the original document must be brought to the hearing

(d) a full and complete statement of account including all payments made and charges applied covering the period beginning with the day of the making of the agreement and ending on the date of the commencement of this case.

(e) any other documents on which the claimant will rely

 

2 In the event that the Claimant shall fail to comply with paragraph 1 of this order the claim shall stand struck out and the Defendant shall be at liberty without further order to apply to this court for judgment and for costs on the standard basis to be subject to detailed assessment proceedings if not agreed.

 

3 In the event of compliance with paragraph 1 of this order this case shall be allocated to the fast track and

 

4 The Defendant shall file and serve an Amended Defence by 4:00pm on (date) (being a date 6 weeks from the date of the making of the case management directions).

[panty54]

Wow That's fazntastic - subbing as in a fairly similar predicament - my account is now with BOS and have had exactly the same letter. A faulty DN has been issued although Halifax don't realise and no I have not said a word. Will follow with interest

[baldwelder]

Thanks Gary. I know the missing pages and signature argument is perhaps a bit weak. I will shortly be sending a SAR to them to find out about charges.

 

On another note, I am of the opinion that their default notice is dodgy as they did not allow 14 full days for me to remedy. I also believe by passing the account to a DCA that they have terminated my agreement and can therefore only claim back the arears if they were to take me to court.

 

I read somewhere on here that if there`s no signature, any authorised person can sign it today to make it valid.

Slap me if i`m wrong

[Braveheart12]

I have just received a letter from Halifax in response to my letter to BOS as below.

 

I must admit that I am rather bemused as to why this account has been passed to *************, as it is in dispute with the *********** and has been since ********.

 

Not only is this a breach of OFT collection guidelines, but also a breach of the Consumer Credit Act 1974 and the Data Protection Act 1998

 

As ************** are now in default of my Consumer Credit Act request, I consider this account to be in SERIOUS DISPUTE.

 

As you are aware while my Consumer Credit Act request remains in default enforcement action is NOT permitted, under s127 this constitutes a complete defence at law.

 

As ********* cannot lawfully pursue any enforcement activities on this account, I would respectfully suggest that this account is returned to the ********* for resolution of these defaults and breaches.

 

If *********chooses to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.

 

I hope that this will not be necessary and an acceptable solution can be accomplished.

 

You will also be aware that as holders of a Consumer Credit Licence you are obliged to comply with the Office of Fair Trading Guidelines on Debt Collection. I would therefore be obliged if you would provide me with an explanation as to why you are attempting to collect on an alleged debt which was disputed with **********. Since this is considered an unfair practice and contrary to the OFT guidelines, you should consider this letter as a formal complaint, and provide me with a copy of your complaint procedure.

 

I would appreciate your due diligence in this matter.

 

Halifax state that they did not receive my Account Dispute letter which I sent after they failed to provide me with a copy of my CCA in March. This is a blatent lie as I have proof of postage and receipt! The letter then goes on to say..."Despite claiming to give the bank notice that the account is in dispute, you have given no valid reason to dispute the debt. Please note, you have no contractual or statutory right to withhold payment to your account. If your account should go into arrears we will ask you to rectify this default and we reserve our right to notify credit reference agencies accordingly. For the avoidance of doubt the Consumer Credit Act does not prohibit collection activity when an account is in dispute.

 

I can confirm that as per the terms and conditions of your account the bank may transfer all or any of our rights or duties under this agreement to another organisation. If we do this, we may let them have any information about you or an additional cardholder. We may also arrange for any person to carry out our rights or duties under this agreement."

 

I am unsure of exactly how to respond to this letter as it is inaccurate, but they did provide me with the CCA after the account went into dispute.

 

Any advice would be greatly appreciated.

[Braveheart12]

BOS have sent me a strange letter:confused:

 

They say thankyou for your recent payment! (I have not made any payment and the balance is the same as it was)

 

It goes on to say please make full payment of the remaining balance.

 

Is this some kind of ploy or a genuine mistake?

[diddydicky]

how long is it since you made any payments?

 

are they trying to stop it becoming SB or show that you are accepting the debt?

[Braveheart12]

Thats what I thought they might be trying. I haven't paid since October 2008, so its years away from being SB. However they may be trying to make it seem like I have accepted the debt and that it is no longer in dispute. I placed the account in dispute in March, however since then Halifax have provided a CCA. I am unsure if this means the account is still in dispute?

[ChrisGr]

Thats what I thought they might be trying. I haven't paid since October 2008, so its years away from being SB. However they may be trying to make it seem like I have accepted the debt and that it is no longer in dispute. I placed the account in dispute in March, however since then Halifax have provided a CCA. I am unsure if this means the account is still in dispute?

 

They did exactly the same with me. They told me I had made an arrangement with them and made a payment. Total nonsense - which is exactly what I told them. I'm on my third request for a valid CCA. BOS as much as admitted they had nothing.

[Braveheart12]

What a pack of chancers! I'll right them a letter to point out their error. Although I'm unsure as to why they'd bother doing this to me as they've provided a CCA which I've been told is enforceable by some and not by others.

[panty54]

BOS have sent me a strange letter:confused:

 

They say thankyou for your recent payment! (I have not made any payment and the balance is the same as it was)

 

It goes on to say please make full payment of the remaining balance.

 

Is this some kind of ploy or a genuine mistake?

 

Hi Mat

 

They have done the same with me and I replied saying that as the account is in serious dispute I have not made any payment. I have recently sent SAR to Halifax with the £10 and I am wondering if this has been used to offset against alleged debt. Have written back to both BOS stating the account is in serious dispute in the absence of a CCA and Halifax reminding them of their obligations under the DPA. I am awaiting the outcome.

[diddydicky]

Thats what I thought they might be trying. I haven't paid since October 2008, so its years away from being SB. However they may be trying to make it seem like I have accepted the debt and that it is no longer in dispute. I placed the account in dispute in March, however since then Halifax have provided a CCA. I am unsure if this means the account is still in dispute?

 

might be worth a quick line to deny having made a payment- and confirming that you wont as the account is in dispute

[Braveheart12]

I have also just included a £10 postal order with my SAR to Halifax. It seems they are trying to pull a fast one! I'll deny payment and point out that the £10 was for my SAR as the letter stated.