Halifax - getting serious now

[tortilla]

Hi all

hope all are well and not too snowbound.

Update.

Since terminating my agreement back in april i have only heard from firstly Blair etc and then from Wescot, both of whom i sent "bemused letters" plus some copies of others.

Then to be on the safe side,because i think that they're default notice was bad, last month i replied to their termination and accepted it formally.

Now they have sent me a statement with the min amount due shown as the full outstanding (according to them) balance. Now does this mean they are trying to pretend that the termination didn't happen?

Do i: Ignore this statement, as to reply might be seen to confirm its existence?

Or: do i reply pointing out the bad default, the termination on the back of that and thus start the ball rolling on the unlawful termination bit (i cant remember the correct term let alone spell it)

Or: do i just point out to them the termination, and tell them that further letters will be filed for reference but not responded to.

 

I would love to hear any opinions please.

 

Regards

[tortilla]

Hi all

hope all are well, in the absence of any opinions I thought I better do something, so after reading around on the forum I have cribbed bits from several letters compiled from those who know better than I, they know who they are and I send them my thanks. If I post it here I hope they who know will give me a bit of feedback/opinions/suggestions before I send it.

Regards

 

Halifax

Retail Bank Collections

PO Box 607

Trinity Road

Halifax14th July 2009

HX1 2UJ

 

 

Re: − Account/Reference Number:

 

Dear Sir/Madam

 

Please accept my apologies; I am afraid I’m confused by your actions.

 

I have received from you a statement of account dated xxxxxx, requesting payment of monies you have no legal right to. I have taken legal advice and will try to explain why this is so.

 

Notwithstanding any dispute as to the existence of a properly executed and legally enforceable credit agreement, it is clearly your position that such an agreement exists.

 

You are therefore legally bound by its terms and conditions and those of the Consumer Credit Act 1974 which regulated and formed part of that agreement.

 

You chose, despite not having first served a valid or effective Default Notice giving me the opportunity to remedy any alleged defect, to unlawfully terminate the agreement and demand payment in full of sums not yet due under the agreement. This is important because s87/88 of The Consumer Credit Act 1974 sets out what you must do if you wish to terminate a Regulated Agreement when the consumer is in default of that Agreement.

 

To be able to lawfully terminate the agreement and still benefit from its conditions PLEASE READ THE FOLLOWING:

 

The requirement for a valid Default Notice to lawfully terminate an Account whilst in default.

 

1. The Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post.

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents:-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday xxxx August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday xxxx August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

6. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully since termination and whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

Due to the above, the termination of this account based on the Default Notice is rendered as an unlawful rescission of contract, and you have relinquished your rights under section 87(1) to claim the outstanding balance.

 

Due to these facts, I now require you to remove any adverse markers placed with Credit Reference Agencies, and to reduce the balance on this account to zero.

 

I also require your written acknowledgement that neither you, nor any agents you employ, will pursue this account.

 

I must advise you however that save for service of summons I intend to file unanswered all further correspondence from you or your agents in this matter and will report any further actions to the OFT

 

Yours faithfully,

 

 

(Digital signature)

[citizenB]

Looks good to me, sadly I think that it will be wasted on the Halifax

[tortilla]

Hi citizenB

thanks for looking so promptly, I'm sure that you're right about being wasted, but I felt I needed to reply even if only to show that that we wont just roll over and let them do what they want, they have to realise that there are rules that we must all comply with.

Regards

[tortilla]

Hi all

next chapter

 

Letter from Moorcroft (Pre-Court Division) demanding full payment etc etc.

 

I am replying with standard "bemused" letter plus a copy of the last one I sent to Halifax, hopefully that will send them scuttling.

 

Just a queery, are Moorcroft part of Halifax (BOS) or are they independent?

 

Cheers all

[Bigdebtor]

I've had Moorcroft on chasing Barclaycard - so I think they are independent - but equally useless!

 

BD

[tortilla]

Hi all

 

Hope everyone is well and happy. After several months I have now heard from iqor, they are offering me a settlement figure of about 50% of what they say I owe them. This has come out of the blue. The last letter I sent halifax was telling them thier default notice was bad and that now they could only claim arrears.

 

They are giving me 30 days to pay if I do they will amend my credit record to show a balonce of zero with a special flag of partial settlement.

 

Now does this mean they have accepted that they can't get full payment, so will settle for what they can?

 

Is this a genuine opening offer, and should I try to negotiate a better offer?

 

Or do I just ignore?

 

My credit file is trashed so this will hardly help that.

 

Opinions and suggestions very welcome please.

 

Thank you all

[tortilla]

I would be very grateful if someone who knows would take a look and offer some advice please

 

Thank you

[Bigdebtor]

Tortilla

 

It's really a judgement call. It depends on whether you want rid of the hassle and uncertainty - or are prepared to hang in there - with the possibility of paying them zilch. I recollect the Brandon appeal is due around now (unless postponed?) - which might (should?) confirm the position many of us had thought previously that only lawful arrears were due if a TN sent on the back of a dodgy DN - although a (very) few have been arguing very vociferously on other threads defending Creditors' rights to re-issue a new DN irrespective of how badly they screwed up originally. It might be worth ignoring this offer until the outcome of Brandon is available - The Harrison v Link/MBNA case recently will also have rattled many Creditors who have behaved equally appallingly. You could always open up negotiations in a few months' time - and in my experience they will usually revist older offers - as usually they simply want paid whatever they can get as easily as possible.

 

If you are tempted to settle then personally I think if they've offered 50% out of the blue they can be knocked down further - to (say) 25 -35% without too much difficulty.

 

What I have done in similar circumstances is to round this down to a round figure (say £1000 or £1500) and tell them this maximum amount has been made available by family to settle this debt F&F - but no more will be made available and I have other creditors to whom the same offer can be made if they won't accept by return. So far, I've usually settled the big debts at 35-40% and a couple of smaller ones at 50%.

 

 

As I said, there's no "right" response as either way could end up in you having to pay more than you would have had to pay otherwise.

 

Hope this helps?

 

BD

[tortilla]

Thanks Bigdebtor your thoughts are apreciated, they say patience is a virtue, maybe I'll throw them a worm, and maybe I'll catch a whale. Offer them something very small now, but if they wait the possibility of something larger in a few months. Try to keep the offer on the table, and hope options will improve with a little time.

 

Once again thanks.

[tortilla]

I don't much like just leaving this "offer" ignored, so I thought I might send them something along the lines of this:

 

Dear Sir,

Thank you for your letter received on XX , its contents are noted. Before I reply it seems clear that the position needs clarifying, in order to do this I enclose copies of recent letters sent to you and/or your client.

I can assure you that I am as keen to resolve this situation as are you and your client. I agree with you that a full and final settlement is the way forward.

As a direct result of your client’s actions they have denied themselves the right to claim any amount other the genuine arrears that were due at the time of alleged default. This figure must not include any penalty charges or unlawfully added interest.

Therefore to enable me to further consider any offer you firstly need to liaise with your client to establish the correct figure of arrears.

I look forward to hearing from you in due course.

 

Yours faithfully,

 

XXXX

(Digital signature)

If nothing else I have responded which is more than they do. It shows I won't roll over at the first hint of an offer, and who knows it might draw them out.

ny suggestions or opinions are very welcome, there may be some legal bits I can add? How are the arrears worked out? How do I ensure it's the correct figure?

Lots of help needed please at what could be a really important time.

Thanks.

[Bigdebtor]

T

 

Since there seems to be some doubt as to what can be claimed by them now I would not put anything more legal in it but just send the letter exactly as you have shown. They may well respond with Brandon etc. - but let's see what they do come up with.

 

BD

[tortilla]

Thanks BD I'll get it sent asap

 

Regards

[HoodedClaw]

Subbed

[tortilla]

Happy Easter to one and all, hope you are all enjoying this weather.

 

Here is the latter I actually sent:

 

Dear Sir,

Thank you for your letter received on (Date), its contents are noted. I need to comment on your first paragraph, in the past you have written to me on 3 occasions, on each occasion I have replied to you promptly. I have proof of both postage and delivery; if you are at a loss I can on request supply you with copies. You also state that you have telephoned me, my phone has the facility to record messages and there have been none from you, had there been I can assure you I would have had the courtesy to return the call. Further more if your local doorstep collector has failed to contact me that may be because I was not at home when he called (Please see my letter of (doorstep caller letter).

Before I reply it seems clear that the position needs clarifying, in order to do this I enclose copies of recent letters sent to you and/or your client.

I can assure you that I am as keen to resolve this situation as are you and your client. I agree with you that a full and final settlement is the way forward.

As a direct result of your client’s actions they have denied themselves the right to claim any amount other the genuine arrears that were due at the time of alleged default. This figure must not include any penalty charges or unlawfully added interest.

Therefore to enable me to further consider any offer you firstly need to liaise with your client to establish the correct figure of arrears.

I look forward to hearing from you in due course.

 

Yours faithfully,

 

(Digital signature)

[tortilla]

And they very quickly replied with this:

 

Dear XXXX

 

Our client will accept a minimum payment of XXX (approx 50% of alleged debt) in full and final settlement. This must be paid to XX(DCA) and must be in our hands within 14 days from the date of this letter otherwise the full balance will be due and no further offers will be made. If this amount cannot be raised then please contact our offices immediately on XXXXXXXX to discuss your account further. We look forward to hearing from you soon.

 

Well what does everyone think of that? We've gone from partial settlement to full and final. Now do I need to get everything removed from credit files or is the F&F sufficient? Do I need to get some kind of assurance that no one will chase this in the future? How do I word that? If (and I know its a big IF) I can get all this is it enough to get it from this DCA or do I need it from Halifax?

 

Don't eat too many hot cross buns or you'll look like me.

[Bigdebtor]

Tor

 

I can only tell you how my credit file looks after accepting F&F's of between 35% and 50% over the last few years. The F&F deals I have done all show on my credit file as "settled" or "satisfied" with the F&F amount paid showing as the final figure paid and the balance due as £0.00 - BUT all missed payments, defaults etc. STILL show for the next 6 years.

 

Really up to you if you want to buy peace of mind at 50% - or push for a lower F&F?

 

I have found it is better to say the money is coming from a family member and is limited to £x00.00 (a nice round number a bit less than the deal offered) - and is non negotiable and only available for a limited period. They usually accept it - but even if they don't, I have found they WILL still accept the eithe rthat same offer repeated - or the initial amount they wanted - a few weeks or months later - so (IMHO) nothing to lose by trying to settle for a good bit less initially.

 

This is what I have found - but others might not have been so lucky - so up to you.

 

Good luck!

 

BD

[tortilla]

Thanks BD, just as a little tester I thought I might send them something like this:Thank you for your letter dated xx received by me on xx its contents are noted.. Firstly I must state that the figure required by your client is both far more than they are entitled to claim as I have previously shown; plus is far out of my reach. I have no capital added to which my income is now greatly reduced owing to me receiving disability benefits now. However I would like to have this matter resolved as I am sure you would, and to that end I have approached a family member with a request for charity.This family member has agreed in principle to make funds available for me to use provided certain conditions are met. They are:• The settlement is full and final• All credit files concerning this alleged debt are notated to show this with a nil balance• All adverse comments of any kind are removed from any and all files• Evidence of the above actions must be suppliedWhen these conditions are met funds will be made available to me, these funds are to be shared with others so each offer must be equitable. The maximum that will be available to settle with Halifax will be XXXX (approx 50% of thier figure). This is a once only offer and will be available for 1 month of the date of this letter.

[Bigdebtor]

Tor

 

Good letter - but I would take the 1 month limit out - just say "the funds have only be made available to me under these conditions for a very short period" . That way you can go back again later without losing face.

 

Good luck

 

BD

[tortilla]

Good point BD I'll take that on board.Thanks

[tortilla]

Hi allWhat I actually sent them about a week ago was this:Dear Sir, Thank you for your letter dated XXXXl 2011 received by me on XXXXl 2011 its contents are noted. Firstly I must state that the figure required by your client is both far more than they are entitled to claim as I have previously shown; plus is far out of my reach. I have no capital added to which my income is now greatly reduced owing to me receiving disability benefits now. However I would like to have this matter resolved as I am sure you would, and to that end I have approached a family member with a request for charity.This family member has agreed in principle to make funds available for me to use provided certain conditions are met. They are:• The settlement is full and final• All credit files concerning this alleged debt are notated to show this with a nil balance• All adverse comments of any kind are removed from any and all files• Evidence of the above actions must be suppliedWhen these conditions are met funds will be made available to me, these funds are to be shared with others so each offer must be equitable. The maximum that will be available to settle with Halifax will be £XXXX.This is a once only offer; these funds will only be made available to me under the above conditions for a very short period of time.I look forward to hearing from you in due course.Yours faithfully, I have now receivd a request from the DCA saying:Following your recent letter, here is a financial statement. Please complete the details and return. Your account will be reviewed and offer processed. You will be advised of our decision etc etc.Not quite sure how to proceed here, surely whatever I put on this form will be used to try increase my offer? What if I just refuse? and say you have my best offer take it or leave it, times running out, if you don't take it now your share will be aportioned between my other creditors who have accepted my offer and there will be nothing left for you? Discuss please.

[tortilla]

Hi allThis is probably the most important letter I've composed to date, so I don't want to get it wrong. Is there anyone out there who can point me in the right direction or indeed has been in the same position, who got it right, or who got it wrong I would appreciate any pointers.There may be pitfalls I don't see.

[tortilla]

I've cobbled together this to see what others with much more experience than me think:Thank you for your letter dated XXXX 2011 received by me on XXXX 2011 its contents are noted. I have no intention of completing your financial statement; my finances are private and will remain so. My proposal stands on its own merits, and may be rejected or accepted by your clients in its entirety. I have no power to change the offer or any of its conditions as I am also subject to them as a condition of receiving the funds. I have to state that failure to accept the proposal will result in the funds allocated for your client being distributed equitably between my other creditors, and then said funds will be exhausted. I will re-state; I have no capital, or indeed any significant assets added to which my income is now greatly reduced owing to me now receiving disability benefits.Again this is a once only offer; these funds will only be made available to me under the conditions previously stated for a very short period of time.I look forward to hearing from you in due course. Comments and suggestions please.

[Bigdebtor]

T

 

That's exactly how I would (and did) treat them! Sometimes it was enough to get the F&F accepted there and then and other times they floated a low F&F - but "this offer is only valid on receipt of an acceptable F&F" - so I sent them it under protest but re-iterated the decison was NOT MINE as the funds were NOT MINE - they then accepted the F&F.

 

Good luck!

 

BD

[tortilla]

Thanks BDI'll get this off today, keep fingers crossed please everyone.Cheers