Is this Halifax CCA enforceable?

[joemay]

Hi,

OHs CCA has arrived with letter from Halifax. Now as far as I can see this isn't enforceable as the prescribed terms are not on the "Application Form", can you guys please have a look and let me know what you think. They also have sent A4 paper print out of current T&C's but not original which would have been in 2002. Shouldn't they send the original T&C's.

 

Also a DN has been issued dated 18/2/09 to remedy before 4/3/09, would this be valid or not?

 

http://i622.photobucket.com/albums/tt306/joemay01/Letter_01.jpg

http://i622.photobucket.com/albums/tt306/joemay01/HalifaxCCA.jpg

 

I await your knowledgeable responses

Thanks

Joemay

Edited May 30, 2009 by joemay

[cerberusalert]

It's too small to read but if it doesn't include the credit limit (although they are allowed to say that it will be specified later), repayment terms, %APR etc it won't be.

[joemay]

http://i622.photobucket.com/albums/tt306/joemay01/HalifaxCCA-1.jpg

http://i622.photobucket.com/albums/tt306/joemay01/Letter_01.jpg

 

 

Hope these are easier to read:)

[joemay]

Another point in the letter they state the agreement has ended, does this effectively mean that it's been terminated?

[anton1]

would this letter be ok to send????please someone comment

Dear Sir / Madam,

Thank you for your letter dated 29th may and received today 30th may the contents are duly noted.

Your reply again raises yet more questions as to the validity of the alleged CCA and the processing of my data.

However i think or rather feel i should firstly correct you on a few points as im unsure as to wether someone is reading my letters correctly or just skimming through them and replying to only a few of the questions that i have raised?

In your letter it states that INTEREST was added to the account on the 7th June 2007, this i cannot argue with however what about the £1024 added between the 13th may and the 21st may 2009? Which seems to have now disappeared since i raised my question? In the letter received today it states that the amount owed to the ALLEGED account is £6,155.46 yet the letters i received last week clearly state that the amount owed is £7180.29? A difference of £1024.83 and as stated above, since mentioned in my last letter it has now disappeared and returned to the original figure, fair enough typo`s happen but i am trying to establish the validity to this alleged account and it causes a lot of confusion when it`s obvious CABOT do not at least check the figures they add to some very reasonable and serious questions.

Secondly your belief that this is a properly executed CCA? Now i am no expert but it would seem neither are CABOT if they seriously expect me to except that the CCA they have supplied is enforceable! My reasoning for that statement......

(1) Where is the credit amount????????????

(2) Where is the interest rate????????????

(3) Where is the duration of the credit agreement????????????

(4) Where is the repayment schedule???????????

(5) Why does it CLEARLY state `APPLICATION FORM`?

(6) Under the section you have directed me to (THE AGREEMENT) it clearly states `to assess my application`

You also state in your letter that `the agreement can be set out on different documents`, Absolute hogwash! The CCA act 1974 clearly states what should and should not be included in the document including the PRESCRIBED TERMS that are completely missing from the alleged CCA that you have supplied and the fact that the terms and conditions you sent with the alleged CCA are not even relevant at the time of the account being opened?

I could go on but feel it is probably just best to insert this information given to me today by the national debtline who have been helping me on this matter.....

CCA RULES FOR PRESCRIBED TERMS

CONSUMER CREDIT ACT

8.2 What if prescribed terms are missing or incorrect?

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

8.3 What are the prescribed terms?

The prescribed terms specified in Sch 6 are as follows:

amount of credit – (nowhere on the alleged CCA)

credit limit - (nowhere on the alleged CCA)

repayments – (nowhere on the alleged CCA)

rate of interest - (nowhere on the alleged CCA)

Sch 6 was not amended by the 2004 Regulations.

IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)

PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations

In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.

Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

The Prescribed Terms are these

An Amount of credit (nowhere on the alleged CCA)

A term stating the amount of credit (nowhere on the alleged CCA)

B Repayments

A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

(a) Number of repayments; (nowhere on the alleged CCA)

(b) Amount of repayments; (nowhere on the alleged CCA)

© Frequency and timing of repayments; (nowhere on the alleged CCA)

(d) Dates of repayments; (nowhere on the alleged CCA)

(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable. (nowhere on the alleged CCA)

C Rate of interest (nowhere on the alleged CCA)

A term stating the rate of interest to be applied to the credit issued under the agreement (nowhere on the alleged CCA)

D Credit limit (nowhere on the alleged CCA)

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

--------------------------

For a Running Account (credit card) agreement BC and D Apply

Please note that these Prescribed terms were not changed in any way by the 2004/1482 Amendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreements executed before that date.

So you see why i feel the CCA you sent is unenforceable and has been clarified for me by the national debt line, CAB and a legal representative. If again CABOT feel that what they hold is fully compliant to a CCA then please state why you feel this(quoting the references of the CCA 1974) as i can then add it to the growing complaint at the way you are deliberately misquoting the legislation towards my dispute.

[anton1]

whoops im really sorry,was ment to post this on my own thread and forgot i was reading your thread please except my apologies and best of luck

[joemay]

whoops im really sorry,was ment to post this on my own thread and forgot i was reading your thread please except my apologies and best of luck

 

Oh thank god for that:eek: thought I had completely lost it:D

[joemay]

Can anyone comment on the enforceability of the agreement and as they stated in their letter the agreement has ended, does this mean it's been terminated as I believe the DN is faulty not enough time to remedy. This account has been passed to Blair oliver & scot so need to know where I go from here.

 

Thanks

[cerberusalert]

It's exactly what it says on the tin, an application form. It contains non of the prescribed terms within the four corners of the document as laid down in the CCA.

 

Yes it states that the agreement has ended and that there is no credit limit in place, so in effect they have terminated the a/c. Blair Ollie & Snot are the in-house collection arm of the Bank of Scotland which is all part of the same set of Shylocks.

[joemay]

Thanks for that cyberusalert.

 

What should my next course of action be. Do I let halifax know that they have not complied with the CCA request, as they haven't even sent the original T & C's, and which letter should I use?

Thanks

Joemay

[cerberusalert]

Send them this;

 

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

This account is in Dispute .

 

On xx/xx/2007 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

 

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states

 

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I refer to page 5 of the guidance which states;

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment.

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

I respectfully request a response to this letter in 14 days

 

 

I trust this out lines the situation

Print name do not sign

[joemay]

I just need something else to be clarified (I'm still very much a novice). In an agreement, I know that there has to be prescribed terms, (which this application form doesn't have;)) but does it have to have the terms & conditions as part of the document and should it have to show some kind of connection to them.

 

On this application form it states:

"Attached to this application form you will find important information about your account. Some of the information is repeated in the Halifax Credit Card Conditions. You will find a copy of these conditions in your Halifax Credit Card application pack".

 

Correct me if i'm wrong but aren't the T&C's suppose to be part of the agreement, because how would you know what it is your actually agreeing to? Or is it ok for them to say "Attached to this application"?

 

Apologies if I'm asking stupid questions, but really do need to get my head around this, as I'm sure this isn't just going to disappear and am seeking some knowledge so that I can help OH fight this.

 

Thanks

[joemay]

bumping for response to post #12:)

[sam tyler]

hi joemay

 

im in much the same situation as you,

 

if you check my thread (halifax final descision help) you will see that i have received an application form that looks identical to yours without any terms and conditions included on the document. They sent me 2 seperate A4 sheets of current and old t+c

 

ive had many people on here state that without the terms its unenforceable but every letter ive sent to halifax stating this has been replied with them stating it is enforceable and they are going to court.

 

whether they will or not remains to be seen. The amount they want from me is just over £5,700 so i dont expect them to let that one go too easily and i am expecting court papers anytime now.

[joemay]

Thanks Sam I'll check out your thread.

 

If anyone else has any comments. they will be most welcomed:)

[cerberusalert]

Correct me if i'm wrong but aren't the T&C's suppose to be part of the agreement, because how would you know what it is your actually agreeing to? Or is it ok for them to say "Attached to this application"?

The T&Cs are part of the agreement, but unlike the 'prescibed terms' they don't have to be embodied within the four corners of the signed document.