Halifax replied to my CCA - is it enforceable

[keefyboy]

Hi London

Thanks for supplying your correspondance back to the Halifax.

 

Please don't take this the wrong way, but you have gone into this like a charging bull in the china shop.

 

There are proceedures that you have to follow when taking this sort of action, but you have jumped in with your second letter, quoting court cases and dates which you may think is your right to pursue straight away for full refunds of everything you have paid and compensation and everything else. You cant not jump the proceedures and the way to do this correctly is to follow the routes taken by other caggers, including myself.

 

If you was to take this to court now, I think their lawyers would absolutely crucify you as you are quoting parts of different acts way before you can use these in your case.

 

Halifax is just using delaying tactics, as you, to them is someone who has no legal knowledge and is trying to claim something which until it is heard in a court of law and decided by the judge. You can not claim for refunds or anything like that until you have PROVED that the agreement is unenforceable. Then you can consider what action to do next.

 

You also have requested that Halifax use the £10 fee that you sent for statements at an earlier date. You can not do this as that money was for what you requested, you can not go back several months later and tell them to use this fee, (which has been paid for the statements, and as I explained before some companies charge up to 50p per page of statement copies. My own bank, Yorkshire Bank does the same charges 50p per copy).

 

The law also says that this is the required to pay them for this information, so there will never be a refund of monies not used, there isn't any left.

 

You need to send your request with another fee of £10 for your SAR request. If you use the template letters that are on here, they detail what is required from them by each of the parts of the act.

 

There is no need to go personal with them, I have learnt this, as it makes no difference to them they take a quick look at the letter and just send what they want to you.

 

You will gain nothing by threatening them with this act and other acts, as you have found out in the replies they have sent you, they just totally ignore them.

 

The main thing now is to PROVE that they do not have an enforceable agreement. Once that is done then this opens the next avenue to pursue. This can be done with the assistance of all the caggers on here if you want them to help you. You can not and must not to try and jump the system, it will not work.

 

So first off I would say look through the templates library and find the SAR request, complete only the required information on it, DON'T add any additional uneccessary correspondance to it. Especially quoting different cases and bits that you feel applies to you.

 

You threaten in your letters a complaint to the FSO ? Have you done an official complaint to them ? Also if and when you contact the FSO you need to supply every letter that you have sent to the Halifax with your official complaint. They will contact the Halifax for their side of the story and then make a decision and reply to you and the Halifax.

 

If not then I would pursue that line first as these CC companies seem to be sending the FSO virtually a full file of documents. This will take some time, but don't rush things. We would all like our money back from them, but each case will have to prove that the agreement is unenforceable first.

 

I do apprieciate that you are on benefits, so at the mo I am having to wait until I can afford a £10 postal order to SAR Lloyds TSB.

 

I hope you can see my views, you have rushed things big time and sometimes quoting parts of the act which their legal people will slap down as they have already done in a couple of their reply letters to you because you have quoted something that may not apply in these circumstances.

 

Let me have your honest opinion of my reply, and please remember I have no legal training I am just passing on on my honest unbiased opinion and things that I have learnt since using the CAG.

 

Keep you letters Direct to the Point and try not to get personal in it.

 

and finally I would make copies of every letter you have sent and make a complete file from start to now, in date order, as it will make your life a bit easier with this case, and you will have it already for sending copies to the FSO, don't forget to add any notes you have manually made with regards to the case.

 

 

Keith

[London000]

Hi London

Thanks for supplying your correspondance back to the Halifax.

 

Keith

 

Hi KB,

Thank you so much for the advice and for your time to go through all my messy letters.

I am trying to get everything in place now. As per contacting the FOS, I only did it for the charges, as it is more than 5 months I have claimed and there was no answer apart the statements sent - still ongoing.

My questions are:

- At their last reply do you think I should just ignore it until they come up with an agreement?? As I am sure that no agreement was in place..Now, they have said that I am disputing the liability for this acc also...should I ignore them??.. as I think that if they could not produce the agreement so far as they said in the last letter "we trying to locate it" then not only they are in default with my req months ago but as they said in one of their previous letter we supplied you with the agreement signed by you...

- also they were sending me these DN's when they were warned that they should not do it as it is part of enforcement and they have said again in their last letter :" we will not be seeking to enforce the agreement" ....which agreement????

 

Thank you kindly,

DD

Edited July 24, 2009 by London000

[London000]

Look here at a few useful letters - http://www.consumeractiongroup.co.uk/forum/barclaycard/167584-barclaycard-no-cca.html

 

As they've admitted they cannot find the agreement, there's little they can do and you could ignore them. You run the risk of getting a Default, if they haven't yet done this.

 

If they take you to court, they should fail without the agreement.

 

Hi Slick,

As I have been looking through other threads, I have seen that in one case the bank was not giving any CCA saying that the are still looking for it, then it went to the court after months and months, then at the court at the end of it, when the case was just about to be struck out as bank failed to supply the signed agreement, one of the bank's employer said: ah, I have found the agreement, sorry....and bank won....are they allowed???after you are asking for so long, they keep it voluntary by not telling you ...and then....to p.... you off and rip you off as well...by magic here it is the agreement.....

I believe that if after the 12+2 and another 30 days they should have not be allowed to come up with it anymore...not to mention that banks are coming up with lies as by supplying you with an invalid application saying that this is the agreement.....

Anyway I was just asking myself if at the begining when we were asking for the CCA should have not mentioned anything about any section but to tell them to use the right section in this matter....that way they do not have any arguments about sections...and so on... They should know the law anyway .....

DD

[keefyboy]

The first thing you have to forget about is the claim for charges, you must not get confused with both the cases. So, the first £10 was for the statements... yes ? and that was for the refund of the charges... yes ? if the answer to these two questions is yes, then what you have to do is completely seperate them from each other. and you did contact the FSO about the Halifax charges, but have you had a reply from them (the FSO ?) If so what did the FSO report back to you and what did the Halifax say to the FSO ?

 

Please don't take this the wrong way again, but if you have gone to get the charges back in the same way as you have tried to do with the Copy of the agreement, then you have tried to short cut things and got very personal and basically done everything wrong... is this right or not ?

 

There are set proceedures you have to go through to get the charges back, as there is for the Copy of the Agreement and you can not and must not cut corners,. My charges cases (I Had 3 in total) the first one took 11 months and the second one took 17 months , and the third one, we went to court on and they won.. so it is not guareentteed that you will definately win. You have to make sure that you do everything in order. You can't demand things from them, you have to ask them to supply information as and when it is releveant.

****************************************

 

Right back to the Copy Agreement, from the reply you gave me further info, 1st you ask for the True Signed Copy of the Agreement, enclosing the REQUIRED FEE of £1, if they send you back a copy of the signed application form, (for example) then they have NOT sent you the correct document or they try to fob you off with the copy without the signature and date boxes, You then have to wait for the required period of time to expire, on this period it is 12 + 2 WORKING days, not calender days.

When the alloted time period has expired you need to send them the letter of default (again in the templates) this not only tells them what they can and cannot do, it tells you also. Once again a time limit is given of 14 days for them to reply with their intentions and that this is now a Formal complaint..

 

As you can see this is quite a lengthy process but it has to be done properly. You still, after this time can not say they don't have a valid agreement, they may have, but I must admit that if they have got it why waste all this time and money saying they have.

 

Now is the time to put in a SAR to the Halifax. Once again there is a template letter which details to them ALL the information they have to supply to you. As you know the SAR must be submitted with a cheque or postal order for £10, this being the set fee for a SAR as reqd by law. They then have 40 days from receipt (normally given as 2 working days) after delivery to them to respond with all the documentation.

If they send you all the documentation then you need to go through everything page by page and check it very thoughly to see any inconsistances. If they have got a Agreement then this is the time it should appear. The data protection act says that they must supply you with basically everything they have on you, whether on computer or manual intervention etc.

 

You next option is to lodge a formal complaint with the FOS.

 

If you go through the FOS then Halifax will have to produce evidence to satisfy the FOS, even though the FOS does not look too carefully at what they receive (my first one they sent a copy of the signed application form, and the FOS did not uphold my complaint).

 

After you receive you SAR documentation and they have not supplied the copy oif the signed agreement then you must now send a letter to the Halifax called a "Letter before Action" in this you must show in the letter under what grounds you are taking them to court, this is where all your copy letters etc are needed because you will need to refer back to them to provide those reasons for your taking them to court.

 

If you go through the court, you will have to submit a N1 form completed, Once again this must be filled in correctly and with no personal feeling of what you think of the Halifax and their methods of beating around the bush tatics.

 

You must take the N1 completed and the fee, or with the exeption details and proof if they apply, to the your nearest County Court Office, they will then make a date for the Halifax to respond with their defence or a date will be set for a hearing. The Halifax may come back and say, they can't find it, but that is not good enough. If they do then you can ask the court to set the order aside. All this proves at this stage is that they do not have an agreement to produce that is enforceable. You will them have to aply to the court once again to have the agreement formally recorded as unenforceable.

 

As you can see from all this above it is a very long winded system, but it is the one that has to be taken to get the Halifax to show that they do not have an enforecable agreement with you in accordance with the Consumer Credit Act.

 

This is as far as I can take you with it at the moment as this is where I now am with 2 of my 3 cases ongoing here.

 

I hope you can now understand where you are going wrong. You MUST stick to the rules I'm afraid.

 

kb

With regards to your questions above.

firstly you can not at this stage say that you are disputing liability for this account, YOU HAVE NOT PROVED that they don't have an enforceable agreement against you. Don't jump the gun, you still don't know if the agreement is unenforceable. Only a COURT can say that when it's been shown sufficient evidence to prove that.

 

"we are trying to locate it", all this is another stalling tatic to try to get you to give up pursueing this case.

 

"we supplied you with the agreement signed by you" unless they have, you know that they haven't, what they have supplied you with is a copy of the signed application form, which doesn't comply with the CCA.

 

They are not allowed to send you Default Notices when the account is in dispute.. If you read through the Account in Dispute letter is quite clearly states that they are not allowed to do it, but as usual they do their own thing. If you say anything to them they will just reply with sojething like w"we have supplied you with a copy of your agreement" so therefore we are not in dispute. (Yet another flaunting of the law.)

 

In their last letter they said again "We will not be seeking to enforce the agreement" and your reply What agreement ?

 

Unfortunately this sort of says they don't have an enforceable agreement against you, but they wont try and enforce it, as the responsibility is down to you to prove they don't have one..

 

So that is what has to be done, its slow and long winded I am afraid but as I said above you have to prove they haven't got an enforceable agreement against you, but ONLY the court can rule this.

 

So for your own sake DON'Tget personal in your letters, follow the correct proceedure and use the template letters, and remember that you will have to produce your letters in court as evidence, so keep them to the point and show they are in the correct order. Don't start quoting parts of other acts that you think applies to you, it may well not and all you are doing is giving them more ammunition to show you don't know what you are doing, and you will NEVER win any case if its not presented correctly and as per rules.

[London000]

The first thing you have to forget about is the claim for charges, you must not get confused with both the cases. So, the first £10 was for the statements... yes ? and that was for the refund of the charges... yes ? if the answer to these two questions is yes, then what you have to do is completely seperate them from each other. and you did contact the FSO about the Halifax charges, but have you had a reply from them (the FSO ?) If so what did the FSO report back to you and what did the Halifax say to the FSO ?

 

Please don't take this the wrong way again, but if you have gone to get the charges back in the same way as you have tried to do with the Copy of the agreement, then you have tried to short cut things and got very personal and basically done everything wrong... is this right or not ?

 

There are set proceedures you have to go through to get the charges back, as there is for the Copy of the Agreement and you can not and must not cut corners,. My charges cases (I Had 3 in total) the first one took 11 months and the second one took 17 months , and the third one, we went to court on and they won.. so it is not guareentteed that you will definately win. You have to make sure that you do everything in order. You can't demand things from them, you have to ask them to supply information as and when it is releveant.

****************************************

 

 

Right back to the Copy Agreement, from the reply you gave me further info, 1st you ask for the True Signed Copy of the Agreement, enclosing the REQUIRED FEE of £1, if they send you back a copy of the signed application form, (for example) then they have NOT sent you the correct document or they try to fob you off with the copy without the signature and date boxes, You then have to wait for the required period of time to expire, on this period it is 12 + 2 WORKING days, not calender days.

When the alloted time period has expired you need to send them the letter of default (again in the templates) this not only tells them what they can and cannot do, it tells you also. Once again a time limit is given of 14 days for them to reply with their intentions and that this is now a Formal complaint..

 

As you can see this is quite a lengthy process but it has to be done properly. You still, after this time can not say they don't have a valid agreement, they may have, but I must admit that if they have got it why waste all this time and money saying they have.

 

Now is the time to put in a SAR to the Halifax. Once again there is a template letter which details to them ALL the information they have to supply to you. As you know the SAR must be submitted with a cheque or postal order for £10, this being the set fee for a SAR as reqd by law. They then have 40 days from receipt (normally given as 2 working days) after delivery to them to respond with all the documentation.

If they send you all the documentation then you need to go through everything page by page and check it very thoughly to see any inconsistances. If they have got a Agreement then this is the time it should appear. The data protection act says that they must supply you with basically everything they have on you, whether on computer or manual intervention etc.

 

You next option is to lodge a formal complaint with the FOS.

 

If you go through the FOS then Halifax will have to produce evidence to satisfy the FOS, even though the FOS does not look too carefully at what they receive (my first one they sent a copy of the signed application form, and the FOS did not uphold my complaint).

 

After you receive you SAR documentation and they have not supplied the copy oif the signed agreement then you must now send a letter to the Halifax called a "Letter before Action" in this you must show in the letter under what grounds you are taking them to court, this is where all your copy letters etc are needed because you will need to refer back to them to provide those reasons for your taking them to court.

 

If you go through the court, you will have to submit a N1 form completed, Once again this must be filled in correctly and with no personal feeling of what you think of the Halifax and their methods of beating around the bush tatics.

 

You must take the N1 completed and the fee, or with the exeption details and proof if they apply, to the your nearest County Court Office, they will then make a date for the Halifax to respond with their defence or a date will be set for a hearing. The Halifax may come back and say, they can't find it, but that is not good enough. If they do then you can ask the court to set the order aside. All this proves at this stage is that they do not have an agreement to produce that is enforceable. You will them have to aply to the court once again to have the agreement formally recorded as unenforceable.

 

As you can see from all this above it is a very long winded system, but it is the one that has to be taken to get the Halifax to show that they do not have an enforecable agreement with you in accordance with the Consumer Credit Act.

 

This is as far as I can take you with it at the moment as this is where I now am with 2 of my 3 cases ongoing here.

 

I hope you can now understand where you are going wrong. You MUST stick to the rules I'm afraid.

 

kb

With regards to your questions above.

firstly you can not at this stage say that you are disputing liability for this account, YOU HAVE NOT PROVED that they don't have an enforceable agreement against you. Don't jump the gun, you still don't know if the agreement is unenforceable. Only a COURT can say that when it's been shown sufficient evidence to prove that.

 

"we are trying to locate it", all this is another stalling tatic to try to get you to give up pursueing this case.

 

"we supplied you with the agreement signed by you" unless they have, you know that they haven't, what they have supplied you with is a copy of the signed application form, which doesn't comply with the CCA.

 

They are not allowed to send you Default Notices when the account is in dispute.. If you read through the Account in Dispute letter is quite clearly states that they are not allowed to do it, but as usual they do their own thing. If you say anything to them they will just reply with sojething like w"we have supplied you with a copy of your agreement" so therefore we are not in dispute. (Yet another flaunting of the law.)

 

In their last letter they said again "We will not be seeking to enforce the agreement" and your reply What agreement ?

 

Unfortunately this sort of says they don't have an enforceable agreement against you, but they wont try and enforce it, as the responsibility is down to you to prove they don't have one..

 

So that is what has to be done, its slow and long winded I am afraid but as I said above you have to prove they haven't got an enforceable agreement against you, but ONLY the court can rule this.

 

So for your own sake DON'Tget personal in your letters, follow the correct proceedure and use the template letters, and remember that you will have to produce your letters in court as evidence, so keep them to the point and show they are in the correct order. Don't start quoting parts of other acts that you think applies to you, it may well not and all you are doing is giving them more ammunition to show you don't know what you are doing, and you will NEVER win any case if its not presented correctly and as per rules.

 

Hi KB,

Thank you very much again.

Wow!!!

1. with regards to the charges yes I did the SAR (at that time from Martins template as I didn't know about this forum) + 10.00, Halifax did send me the statements, then I have taken one by one and checked the amount of the charges. I have then sent a Halifax a letter including the amount (+ 8%) to return(I have included also a sheet of all the detailed charges). No answer..and again I have sent another one and no reply...

Then I have contacted the FOS. They first aknowledge it and that was 4 weeks later, then they wanted all the evidence (letters,etc) which I did.

Only now have a letter from them saying that they will ask the bank for their answer... which I am waiting for.

 

2. I shall write again a SAR letter from the forum in which I will include the £10.00. Then I shall come back and post what they have disclosed..

KB!!!!

Thank you again for everything...

DD:rolleyes:

[keefyboy]

Just make sure you keep the two threads well apart. Are you running a thread on your charges case if so can I have the link plse

KB

[slick132]

Hi London,

 

Re your query above, even if the CCard Co fails to produce an agreement to you for months, if they go to court and produce a valid agreement, they may win and get a judgement against you. However, in many cases, the agreement is not produced or it's invalid. They tend then to drop the claim against you. It depends on which CCard Co you're up against.

 

Most of my experience is with Barclaycard who tend not to send out any agreements.

 

But they are quite happy to repay penalty charges made to the a/c, without you having to file a court claim. However, if you claim interest from them at Contractual rates, they'll refuse to repay and you will have to file a claim at court.

 

As KB has said, the 2 issues (credit agreements and card a/c penalty charges) must be handled separately.

 

Reclaiming bank a/c charges is another matter. Once you have all the a/c data, make up your SOC using a site spreadsheet and send your claim letter, then LBA to the bank.

 

When they refuse to refund, file the court claim. I wouldn't involve the FOS as they won't help you while the Stays are still in place pending resolution of the OFT test case.

[London000]

Just make sure you keep the two threads well apart. Are you running a thread on your charges case if so can I have the link plse

KB

 

Hi KB,

Not yet but I should do that in the next days.

DD

[London000]

Hi London,

 

Re your query above, even if the CCard Co fails to produce an agreement to you for months, if they go to court and produce a valid agreement, they may win and get a judgement against you. However, in many cases, the agreement is not produced or it's invalid. They tend then to drop the claim against you. It depends on which CCard Co you're up against.

 

Most of my experience is with Barclaycard who tend not to send out any agreements.

 

But they are quite happy to repay penalty charges made to the a/c, without you having to file a court claim. However, if you claim interest from them at Contractual rates, they'll refuse to repay and you will have to file a claim at court.

 

As KB has said, the 2 issues (credit agreements and card a/c penalty charges) must be handled separately.

 

Reclaiming bank a/c charges is another matter. Once you have all the a/c data, make up your SOC using a site spreadsheet and send your claim letter, then LBA to the bank.

 

When they refuse to refund, file the court claim. I wouldn't involve the FOS as they won't help you while the Stays are still in place pending resolution of the OFT test case.

 

Hi SLICK,

Thank you very much. I will try to post everything else I have with regards to charges as well and I should post the link.

DD

[London000]

Hi London,

 

Re your query above, even if the CCard Co fails to produce an agreement to you for months, if they go to court and produce a valid agreement, they may win and get a judgement against you. However, in many cases, the agreement is not produced or it's invalid. They tend then to drop the claim against you. It depends on which CCard Co you're up against.

 

Most of my experience is with Barclaycard who tend not to send out any agreements.

 

But they are quite happy to repay penalty charges made to the a/c, without you having to file a court claim. However, if you claim interest from them at Contractual rates, they'll refuse to repay and you will have to file a claim at court.

 

As KB has said, the 2 issues (credit agreements and card a/c penalty charges) must be handled separately.

 

Reclaiming bank a/c charges is another matter. Once you have all the a/c data, make up your SOC using a site spreadsheet and send your claim letter, then LBA to the bank.

 

When they refuse to refund, file the court claim. I wouldn't involve the FOS as they won't help you while the Stays are still in place pending resolution of the OFT test case.

 

 

Hi Slick,

I know that FOS is moving very slow but given the fact that I am under the JSA they might consider to speed up...hopefully.

I shall send my new link with regards to the charges..these days once I have a bit of time...

Thank you kindly,

DD:cool:

[London000]

Hi there everyone (KB, Lexis, Slick, Vint,etc),

I would like to send a response to Halifax to their letter dated 16/July/2009 as it was the last one received. (see the link below)...

 

Halifax 4556...1st req for CCA 250309.zip

 

I shall post the letter (before I will jump too high) for some advices this evening....meanwhile I am still waiting for their reply to the SAR just sent...see what they are coming with...

DD

[vint1954]

Hi there everyone (KB, Lexis, Slick, Vint,etc),

I would like to send a response to Halifax to their letter dated 16/July/2009 as it was the last one received. (see the link below)...

 

Halifax 4556...1st req for CCA 250309.zip

 

I shall post the letter (before I will jump too high) for some advices this evening....meanwhile I am still waiting for their reply to the SAR just sent...see what they are coming with...

DD

Hi London,

 

can you save it back to an earlier version of word.

[vint1954]

Hi London,

 

Found a copy of your letter in photobucket.

 

They seem to be saying that they will look for your agreement and will not seek to enforce through the courts while they do. I think for now, just a simple letter below, should surfice. See what they come back with.

 

28th July 2009

 

Dear xxxxxxxxxxxxxxx,

 

Re account no xxxxxxxxxxxxxxxxxxxx

 

I am in receipt of your letter dated 16th July 2009 and note its contents. In particular that you agree, that the application front cover that you have disclosed, is not compliant in satisfying my request under s78 of the consumer credit act 1974, or indeed my later request for this document under CPR31.16.

 

I would also confirm your comments, that while you attempt to locate the signed agreement, you will not seek to enforce the alleged debt.

 

Yours

Edited July 28, 2009 by vint1954
missing worms

[vint1954]

If they then come back and say, your application is the agreement, try using the text below after reading and editing to suit your own situation.

 

In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

 

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

 

Again I have to refer you to the information below.

 

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

 

 

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

 

Despite the alleged account being in dispute following your failure to supply the required data as requested by myself, you issued a Default Notice under section 87 (1) of the act on the xxxxxxxxxx, further terminating the alleged account on the xxxxxxxxxxx , and I have confirmed acceptance of your actions. This was prior to supplying any documentation under my first request, until July 2009. Despite these actions, HSBC are continuing to issue arrears letters and inappropriately threatening action by a Debt Collection Agency.

 

Following your previous threats of legal action, you have failed to supply a true copy of any alleged agreement under CPR 31:16, as I have requested.

 

I am now granting to you a further 7 days to produce a copy of an executable agreement.After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt.If you are insisting that the non enforceable document, that you have supplied, filled in by yourselves, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

Edited July 28, 2009 by vint1954
Too many worms this time.

[London000]

If they then come back and say, your application is the agreement, try using the text below after reading and editing to suit your own situation.

 

In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

 

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

 

Again I have to refer you to the information below.

 

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

 

 

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

 

 

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”

 

Despite the alleged account being in dispute following your failure to supply the required data as requested by myself, you issued a Default Notice under section 87 (1) of the act on the xxxxxxxxxx, further terminating the alleged account on the xxxxxxxxxxx , and I have confirmed acceptance of your actions. This was prior to supplying any documentation under my first request, until July 2009. Despite these actions, HSBC are continuing to issue arrears letters and inappropriately threatening action by a Debt Collection Agency.

 

Following your previous threats of legal action, you have failed to supply a true copy of any alleged agreement under CPR 31:16, as I have requested.

 

I am now granting to you a further 7 days to produce a copy of an executable agreement.After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt.If you are insisting that the non enforceable document, that you have supplied, filled in by yourselves, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

 

Hi Vint,

 

Thank you very much for that. I have drafted a few lines but as I am in rush at the moment I will write them 2morrow and I will read your lines...

 

Take care,

DD:rolleyes:

[London000]

Hi everyone,

For those they could not see the link to the letters sent by Halifax I will post their last letter received.

 

://s609.photobucket.com/albums/tt173/americaninparis/?action=view&current=reply160709ascannotfindtheAgreement.jpg" target="_blank">

 

or you can view it here

 

http://i609.photobucket.com/albums/tt173/americaninparis/reply160709ascannotfindtheAgreement.jpg

 

 

DD

Edited July 29, 2009 by London000

[Stressed150]

Subbing, also have exactly the same application form from halifax in place of an agreement, at retty much the sme stage as you London, my dispute has been going on since May, have been defaulted recently and agreement has been terminated.......

 

London you mentionedthat your application was illegible, this was the case with mine as well, did u point this out to Halifax? If so, what was their reposne, they admitted that the copy they sent me could be clearer however refused to accept that it is completly illegble, and I have gone on to use this as my base point in arguing my case with them......

 

Also, u mentioned that you are also claiming bck charges etc? How are you gettin on with them from that point?

[London000]

Subbing, also have exactly the same application form from halifax in place of an agreement, at retty much the sme stage as you London, my dispute has been going on since May, have been defaulted recently and agreement has been terminated.......

 

London you mentionedthat your application was illegible, this was the case with mine as well, did u point this out to Halifax? If so, what was their reposne, they admitted that the copy they sent me could be clearer however refused to accept that it is completly illegble, and I have gone on to use this as my base point in arguing my case with them......

 

Also, u mentioned that you are also claiming bck charges etc? How are you gettin on with them from that point?

 

Hi there stressed,

Ye I have mentioned that the applic. is illegible, they did not reply at all,

they have defaulted me 3 times, no sign of any termination yet...that i what I am waiting for.

And with regards to the charges...today I have had their letter saying that they returned into my account(actually reduced the whole amount with 600.00). OLE!!!! Like a bull!!!!

I have been waiting for 6 months, few letters, ignorance from their side, then FOS...and the pretty outcome..£600.00. It s not bad. I have asked 100.00 compensation but they turned it down. I will keep trying....until I will take everything back to the last penny...

I have to ask around if I should do something about writing a letter as response..... I have just SAR them and waiting .....

Good luck and if you have any news or find anything interesting please do let me know. I am waiting at the moment...

Thank you for your reply and keep fighting till the end....

 

DD

[Stressed150]

Well done and congrats with that, its a lil victory on it's own!! Will give you a shout if I read anything interesting/relevant, in the meantime following your thread eagerly...x

[London000]

Thanks DD but I'm a big 'ol wuss at heart and will avoid court at all costs, even though they have no case whatsoever:rolleyes:

 

 

HI Lexis,

 

I would please like to ask you, if by any chance you could look at this letter received from Halifax. I know that your letters have been cheeky and funny in the same time. You have kept me in such a good mood all these months since joining the forum with your letters.

Any thoughts as well?? At the moment Vint sent me a good template and once I have other opinions then I will know what to do. So far I will wait as they did not give me any time in which I have to reply...

Have a look....:-?

 

Image hosting, free photo sharing & video sharing at Photobucket

 

Thank you in advance and watching your further developments on your thread...although they were not many lately as far as I could see..

DD

[London000]

Well done and congrats with that, its a lil victory on it's own!! Will give you a shout if I read anything interesting/relevant, in the meantime following your thread eagerly...x

 

Hi stressed,

 

Thank you very much. I know that it was a victory on my side in a way but for them it is nothing....just to click a minus button on their PC ...I belive that even their PC does not recognise the minus button anymore as they have never used it.....but I bet the paint on the + sign is already wiped out... not to mention their shaken hands to take this action.....

Take care and when I will be ready to send the letter I should post it stright away....

DD:-D

[London000]

Hi there everyone,

I am still waiting for the SAR. Nothing yet but....keep waiting...

Also with regards to their letter I should respond within days...

I have drafted a letter but it is not finished yet.

Vint has sent a very good one so I should try to copy and paste most of it...

DD

[London000]

Hi London,

 

Found a copy of your letter in photobucket.

 

They seem to be saying that they will look for your agreement and will not seek to enforce through the courts while they do. I think for now, just a simple letter below, should surfice. See what they come back with.

 

28th July 2009

 

Dear xxxxxxxxxxxxxxx,

 

Re account no xxxxxxxxxxxxxxxxxxxx

 

I am in receipt of your letter dated 16th July 2009 and note its contents. In particular that you agree, that the application front cover that you have disclosed, is not compliant in satisfying my request under s78 of the consumer credit act 1974, or indeed my later request for this document under CPR31.16.

 

I would also confirm your comments, that while you attempt to locate the signed agreement, you will not seek to enforce the alleged debt.

 

Yours

 

Hi Vint and everyone out there,

 

I have drafted a letter including yours Vint and thank you for that.

I wanted to cut the corners a little bit as the ketter is a result of both of yours sent..with an addition here and there... Is it OK???

Shall I cut down to your original???:?

 

Account in a very serious dispute as well as in default[/font]

Dear Ms/Mrs Anne Gartshore or whoever deals with this case....

 

Re account no

 

I am in receipt of your letter dated 16th July 2009, received on the 20th July 2009 and note its contents.

In particular that you agree, that the application front cover that you have disclosed, is not compliant in satisfying my request under s78 of the consumer credit act 1974, or indeed my later request for this document under CPR31.16.

I would also confirm your comments, that while you attempt to locate the signed agreement with all the prescribed terms and other relevant documents complying with the Act and my lawful request, you will not seek to enforce the alleged debt.

Should you imply that an application is the agreement, I have to let you know the following:

In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required:

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

I have to refer you to the information below as I have done it in my previous letters.

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.[/font]

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97.

Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn’t be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed that nobody’s human rights were infringed.” - 167 Justice of the Peace (2003) 773.”[/font]

Despite the alleged account being in dispute following your failure to supply the required data as requested by myself, you issued Default Notices under section 87 (1) of the act , further terminating the alleged account , and I have confirmed acceptance of your actions. This was prior to supplying any documentation under my first request, until July 2009. Despite these actions, Halifax is continuing to issue arrears letters and inappropriately threatening action by a Debt Collection Agency.[/font]

Following your previous threats of legal action, you have failed to supply a true copy of any alleged agreement under CPR 31:16, as I have requested.

In addition, in your last letter you have stated the followings:

”…and we are satisfied the terms and conditions of the agreement were on the reverse of the application form, therefore we did provide a copy of the signed application form, therefore your client had sight of these details…”

As a matter of interest, are you able to back up your claims by proving that you were indeed working for the Halifax, in the department where applications were received, in 1997? Are you further able to prove that you were witness to me signing a legible agreement including all prescribed terms? If not, then I have to ask how you can make such sweeping statements.

I have asked you months ago to supply me with the legible, signed copy of the agreement, complete with all prescribed terms which you still did not.

You advise that an illegible application form fulfils your obligations under the Consumer Credit Act 1974. It does not. and I quote from the Act :

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer

I am sure you are well aware that the document you have supplied is not an enforceable agreement. I am equally sure that you are aware that without a fully legible, signed agreement containing all the prescribed terms, you are not permitted to take any enforcement action (and that I have highlighted out to you in my previous letters in bullet points).

I am now granting to you a further 7 days from the date you receive this letter to produce a copy of an executable agreement. After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt. If you are insisting that the non enforceable document, that you have supplied, filled in by yourselves, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero

Yours sincerely,[/font]

:confused:

Is it OK????

Thank you very much once more.....

Edited August 2, 2009 by London000
the font comes in front

[London000]

Hi London,

 

Found a copy of your letter in photobucket.

 

They seem to be saying that they will look for your agreement and will not seek to enforce through the courts while they do. I think for now, just a simple letter below, should surfice. See what they come back with.

 

28th July 2009

 

Dear xxxxxxxxxxxxxxx,

 

Re account no xxxxxxxxxxxxxxxxxxxx

 

I am in receipt of your letter dated 16th July 2009 and note its contents. In particular that you agree, that the application front cover that you have disclosed, is not compliant in satisfying my request under s78 of the consumer credit act 1974, or indeed my later request for this document under CPR31.16.

 

I would also confirm your comments, that while you attempt to locate the signed agreement, you will not seek to enforce the alleged debt.

 

Yours

 

Hi Vint,

I have had a surprise today. Moorcroft given me 7 days to pay the whole balance. I have just received their letter dated 30th of July which means that I have only 3 days in fact.

Any template letter I could use???

DD:confused:

[London000]

Look here at a few useful letters - http://www.consumeractiongroup.co.uk/forum/barclaycard/167584-barclaycard-no-cca.html

 

As they've admitted they cannot find the agreement, there's little they can do and you could ignore them. You run the risk of getting a Default, if they haven't yet done this.

 

If they take you to court, they should fail without the agreement.

 

HI there Slick,

I have said to others on the forum I have received a letter from Moorcroft given me 7 days in which to pay the whole balance. It is dated 30th of July09 so I only have 3 - 4days to pay it.

As I have req. CCA 5 months ago, they only disclosed a 1 sided application blanc on the back, put HALIFAX on notice a in dispute and default.....and so on...

Any help please?? Any template???

Also I have just had a letter with regards to the charges dated 28 July complying with my request but as it went ot FOS and I have asked compensation as well and they do not want to pay it I should go to FOS -which makes this acc still in dispute even with the charges??....or not:confused:

Any help will be most welcome....

DD:-|