Halifax replied to my CCA - is it enforceable

[vint1954]

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.....

Hi london,

 

I don't realy see the point in doing their job for them. I think that you need to keep the letter to the point, however you must be comfortable with the letter that you send.

[London000]

Hi london,

 

I don't realy see the point in doing their job for them. I think that you need to keep the letter to the point, however you must be comfortable with the letter that you send.

 

HiVint,

Thank you once more.

I shall stick to your letter.

Do you know anything about this Moorcroft??? As I have recived this one today...

 

 

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

 

Anything you can sugest???

DD

[vint1954]

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:

Hi again London,

 

No there is no specific template to use, but try the letter below.

 

Can you just remind me, have you had a DN & TN yet?

 

Vint

 

Dear sirs,

Ref account:

I refer to your letter of xxxxxxxxx 2009, received xxxxxxxxx 2009, requesting the full balance of the above account to be repaid. No debt to your client is acknowledged.

 

I am rather bemused to receive this letter from yourselves. On xxxxxxxxx 2009 I made a formal request to your client pursuant to s.78(1) of the Consumer Credit Act 1974. They have failed to comply within the statutory time limit, or at all. It should not be necessary to have to remind you that the provisions of s.78(6) now apply. This account was placed in dispute on the xxxxxxxx 2009 and Halifax remain in default of supplying the required alleged agreement.

 

In the circumstances, your and your clients threat of legal action would appear to be a breach of the Consumer Protection from Unfair Trading Regulations 2008 and the Office of Fair Trading Guidance on Debt Collection and your attention is drawn to this guidance document.

Your attention is also drawn the ICO on Data protection, as passing details on to a third party while an account is in dispute is contrary to the Data Protection Act. I have previously issued letters to Halifax under s10 of this act. You may wish to advise your client and remind yourselves of the implications of ignoring the Data Protection Act.

Should you or your client bring proceedings, they will be robustly defended, and the Court's attention drawn to the above statutory breaches . Furthermore, I reserve the right to bring the conduct of your client to the Court when the issue of costs is being considered.

I suggest that you immediately return this account to Halifax to be resolved.

 

Yours sincerely

[vint1954]

Hi again London,

 

No there is no specific template to use, but try the letter below.

 

Can you just remind me, have you had a DN & TN yet?

 

Vint

 

Dear sirs,

 

Ref account:

 

I refer to your letter of xxxxxxxxx 2009, received xxxxxxxxx 2009, requesting the full balance of the above account to be repaid. No debt to your client is acknowledged.

 

I am rather bemused to receive this letter from yourselves. On xxxxxxxxx 2009 I made a formal request to your client pursuant to s.78(1) of the Consumer Credit Act 1974. They have failed to comply within the statutory time limit, or at all. It should not be necessary to have to remind you that the provisions of s.78(6) now apply. This account was placed in dispute on the xxxxxxxx 2009 and Halifax remain in default of supplying the required alleged agreement.

 

In the circumstances, your and your clients threat of legal action would appear to be a breach of the Consumer Protection from Unfair Trading Regulations 2008 and the Office of Fair Trading Guidance on Debt Collection and your attention is drawn to this guidance document.

 

Your attention is also drawn the ICO on Data protection, as passing details on to a third party while an account is in dispute is contrary to the Data Protection Act. I have previously issued letters to Halifax under s10 of this act. You may wish to advise your client and remind yourselves of the implications of ignoring the Data Protection Act.

 

Should you or your client bring proceedings, they will be robustly defended, and the Court's attention drawn to the above statutory breaches . Furthermore, I reserve the right to bring the conduct of your client to the Court when the issue of costs is being considered.

 

I suggest that you immediately return this account to Halifax to be resolved.

 

 

Yours sincerely

Just reading back a few pages of the thread.

 

You may want to quote Halifax in this letter, when they state that they will not take legal action until they find your signed agreement. Make it para 3.

[London000]

Just reading back a few pages of the thread.

 

You may want to quote Halifax in this letter, when they state that they will not take legal action until they find your signed agreement. Make it para 3.

 

Hi Vint,

What would I do without your help????

Thank you once more..

I will do just that stright away.

DD

[vint1954]

Hi Vint,

What would I do without your help????

Thank you once more..

I will do just that stright away.

DD

No problem,

 

just visit here: http://www.consumeractiongroup.co.uk/forum/bear-garden/212862-ahh-those-days-when.html#post2337854 to improve your evening.

[slick132]

Hi London,

 

I see you're getting help already.

 

All I would say about Moorcroft's demands are that you must learn not to panic about them. They will threaten and bully to get what they want, but they are virtually powerless themselves and can largely be ignored.

 

Just as they, of course, generally ignore most of what you say to them.

Edited August 3, 2009 by slick132
typo

[London000]

No problem,

 

just visit here: http://www.consumeractiongroup.co.uk/forum/bear-garden/212862-ahh-those-days-when.html#post2337854 to improve your evening.

 

Hi Vint,

THank you for the links. It did not improve my evening as I have only watched it this morning....no wonder I did not dream anything....but definetely improved my morning though.

DD:lol:

[London000]

Hi London,

 

I see you're getting help already.

 

All I would say about Moorcroft's demands are that you must learn not to panic about them. They will threaten and bully to get what they want, but they are virtually powerless themselves and can largely be ignored.

 

Just as they, of course, generally ignore most of what you say to them.

 

HI Slick,

Thank you for that.

I was just going to borrow your dog ...to chew their ...back side (keeping the nasty comments about our common "friends" for myself ..at the moment)..

Regards,

DD

[London000]

HI everyone

I have found this on the forum. Thought it might be of any help for most of us....

 

http://www.consumeractiongroup.co.uk...t-2226238.html this is a link to letter susan edwards head of credit investigations and enforcement from OFT which makes intresting reading on these issues!

 

DD

[vint1954]

HI everyone

I have found this on the forum. Thought it might be of any help for most of us....

 

http://www.consumeractiongroup.co.uk...t-2226238.html this is a link to letter susan edwards head of credit investigations and enforcement from OFT which makes intresting reading on these issues!

 

DD

Yes, there is a text version of this, to add when an unenforcable agreement is sent.

[London000]

Yes, there is a text version of this, to add when an unenforcable agreement is sent.

 

I think I might have seen it a while ago on the forum but this time I have pasted it here just in case some others are missing the thread with the link...

I did not send it but ..is never too late..saying that, I have given them way too many of quotes and all that.. only if they read them??

I bet through this forum they have done their research - actually people here came up with so many things...

DD

[vint1954]

I think I might have seen it a while ago on the forum but this time I have pasted it here just in case some others are missing the thread with the link...

I did not send it but ..is never too late..saying that, I have given them way too many of quotes and all that.. only if they read them??

I bet through this forum they have done their research - actually people here came up with so many things...

DD

Hi London,

 

Here is what is required at the end of letters.

 

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 at the risk of repeating myself, I 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.”

I am now granting to you a further 7 days to produce a copy of an executableagreement . 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, 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.

I look forward to your response.

 

Yours sincerely

[London000]

Hi everyone,

 

I have sent the letters (SAR) but still waiting....

Then the letter to Moorcroft 2 days ago......

See what the will come up with....

DD

[lexis200]

Hi London:)

 

I had the same from Moorcroft a while ago. Then I had a letter that I could barely read due to the dust on it from them retreating at speed.

 

I can't remember off hand if your account has been passed round many DCA's, but with us Moorcroft didn't hit the scene until I'd already got rid of 3 or 4, so I don't think I'm too far off the mark in saying that they are the ones used when the rest of the bottom feeders have got diddly squat.

 

As slick says don't worry about them too much:)

[lexis200]

Just in case you do have another letter from them (OH did as their second crossed in the post with my first), these are what got rid of them completely for me. If it's any use to you feel free to take what bits you can use.

 

Your letter dated 30th May (a Saturday), sent 2nd class standard, arrived with me today. Despite giving a short time to respond it would seem time was not of the essence for you with regards to delivery.

 

As I have already told Blair, Oliver & Scott, Robinson Way and Iqor, unfortunately it appears that once again the Bank of Scotland has conveniently forgotten to tell their recovery agents that this account is irrevocably unenforceable, and that neither they nor you have any right or merit to legal action.

 

I suggest you pass this account back to the Bank of Scotland, as there is absolutely no possibility of me dealing with you.

 

I do not expect to hear from you again, save for a letter informing me you have closed your files and passed the account back to the Bank of Scotland. You may include an apology to me for the empty threats you have issued which contravene OFT guidelines if you so wish.

 

and when they then sent a doorstep caller type letter (some follow on from a court threat!)

 

Having received your latest correspondence dated 18th June, it seems my last letter was not clear enough.

 

I made it very plain that this 'debt' is based on an unenforceable agreement which neither the Bank of Scotland or any of it's chosen debt collection agencies are able to enforce in any way.

 

Furthermore, should it be your intention to arrange a “doorstep call”, please be advised that under OFT rules, you can only visit me at my home if you make an appointment and I have no wish to make an appointment with you.

 

There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you, or your representatives to visit me at my property and if you do so, then you will be liable to damages for a tort of trespass and action will be taken, including but not limited to, police attendance.

 

I should also mention at this point that should you choose to ignore my implicit instructions not to darken my doorstep, in addition to calling the police to report trespassers I will be issuing you with an invoice for £50 which is my current rate for unwanted visitors using my private footpath.

 

As I said in my last letter, DO NOT CONTACT ME AGAIN. If I hear from you again I will be complaining to the Office of Fair Trading, the Financial Ombudsman and Trading Standards regarding your blatant disregard of OFT guidelines and various legislation.

[London000]

Just in case you do have another letter from them (OH did as their second crossed in the post with my first), these are what got rid of them completely for me. If it's any use to you feel free to take what bits you can use.

 

 

 

and when they then sent a doorstep caller type letter (some follow on from a court threat!)

 

Hi lexis,

It is very good to hear from you. I thought you have had enough of these things and you have gone..

Thank you very much for these letters. I shall copy them if is OK with you.

Vint has given me some good ones as well. I have to wait for their reply - if I hear again from them which I do hope...

I have to say that I have been watching you thread for a while and it really gave me so much to smile- in a very good sense as they are to the point and funny . I think that, Halifax is enjoying your leters more than the money they actually going for at the moment no wonder they keep writing to you.

In case you did not see my other thread Halifax finally repayed the charges in total of almost £600.00. Obviously they have started to add charges after 1 year so they don't have to loose anything...

Sorry that I haven't answer to your question....

This Moorcroft is the first one and I hope the last one

DD

Edited August 6, 2009 by London000

[lexis200]

Well done on the charges:)

 

I hadn't gone, just having a little break for a week or so. All my creditors are at status quo for a minute so until I start poking them again I don't need to be so on top of them:)

 

Vints letters are excellent so hopefully they'll knock them on the head straight away, but if they don't or if you need them for something else you are quite welcome to copy mine for use in whole or part.

 

Fingers crossed you get a good response sooner rather than later:)

[MarkedCard]

sub

[London000]

Well done on the charges:)

 

I hadn't gone, just having a little break for a week or so. All my creditors are at status quo for a minute so until I start poking them again I don't need to be so on top of them:)

 

Vints letters are excellent so hopefully they'll knock them on the head straight away, but if they don't or if you need them for something else you are quite welcome to copy mine for use in whole or part.

 

Fingers crossed you get a good response sooner rather than later:)

 

Hi Lexis,

Wow, you do seem to stay late. I thought I am the last one watching it...

At least I am not the only one... Now I am going to park ..my body for a rest..

Night night...

DD:D

DD

[lexis200]

Beat you - but I am off in a minute:D

[London000]

Yes, there is a text version of this, to add when an unenforcable agreement is sent.

 

Hi Vint and everyone,

Am I crazy or what??? I have sent a letter to reclaim all my charges to a different bank, they have sent half of them, then I have asked for the rest...they have sent the other half minus a few pounds, then I have sent another letter asking why is the difference of £3.00 instead of my full amount asked.....then surprise..surprise...Cilla Black.....they have sent another amount equal the half of all my total claim amount......so I end up with 1 and 1/2 amount reclaimed.....Ah! In mean time I have CCA THEM!!!!Maybe that's why.....

DD

[London000]

Hi there,

 

Can anyone direct me to the right direction with regards to the state pension please!!!!

I have a few questions to ask....

First would be that if I have worked abroad in EU for a few years woud that affect in any way the basic state pension???

If I would get a pension from the country I used to work (being a very small amount) would they deduct anything from the basic state pension??

DD

[vint1954]

Hi Vint and everyone,

Am I crazy or what??? I have sent a letter to reclaim all my charges to a different bank, they have sent half of them, then I have asked for the rest...they have sent the other half minus a few pounds, then I have sent another letter asking why is the difference of £3.00 instead of my full amount asked.....then surprise..surprise...Cilla Black.....they have sent another amount equal the half of all my total claim amount......so I end up with 1 and 1/2 amount reclaimed.....Ah! In mean time I have CCA THEM!!!!Maybe that's why.....

DD

Enjoy it!

[vint1954]

Hi there,

 

Can anyone direct me to the right direction with regards to the state pension please!!!!

I have a few questions to ask....

First would be that if I have worked abroad in EU for a few years woud that affect in any way the basic state pension???

If I would get a pension from the country I used to work (being a very small amount) would they deduct anything from the basic state pension??

DD

Not sure on pensions London.

 

There is another forum on the site for these questions

 

Benefits, Tax Credits and Minimum Wage - The Consumer Forums

 

I know that the requrement for the number of years contributions, is shortly going down from 40 years to 30 years.

 

Vint