Blomb vs Halifax

[Blomb]

Hi All,

 

Here is an odd one (I have not seen this before) - not sure what it means but I shall try to explain in brief.

 

Sent CCA, SAR & CPR request to Halifax for Credit Card agreement... to date received nothing so finally after exhasting all avenues sent letter stating account in dispute.

 

Today I received this:

 

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

Thank you for your letter of #######

At the moment we are unable to provide a copy of the signed application form. However we can confirm our procedure has always been to obtain our customer’s signature to an agreement containing the prescribed terms before entering into a credit card agreement. As such, we are confident that the agreement remains enforceable.

The regulations define what is required of a ‘’copy’’. Whilst regulation 3 provides ‘’every copy’’ of an executed agreement... shall be a true copy’’, Regulation 3(2) (b) provides that a copy can omit any signature box, signature or date of signature.

In summary, to comply with Section 78, the copy does not need to be a copy with the customer’s signature on it. We do not have to produce an actual copy of the document signed. The purpose of Section 78 is to allow debtors access to their terms and conditions of their credit agreement and by providing the debtor with a true copy of the terms and conditions of the agreement we have complied with Section 78.

While we try to locate the full original agreement we will not be seeking to enforce the agreement. However, even if an agreement is unenforceable, the contract still has legal effect and is not void, the lender is merely prevented from seeking an enforcement order from the court.

I hope this clarifies our position

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

It might be worth me pointing out that this account is not currently in arrears - what does the letter mean? It seems to contradict itself on many points?!?

 

Any ideas what this actually means?

Help on this would be very much appreciated.

 

 

Thanks Blomb

[Guest liamgee]

That letter is not unusual in the sense that the banks are now trying to confuse their customers. If you notice the letter refers to several sections of an act but doesn't go on to mention the act in question which we know to be the CCA 1974 and its revisions. The idea being that you assume they are talking about the DPA and the hope is you will not question their knowledge of the act. Its pretty standard at the moment and is designed to deter individuals pursuing their DPA request.

 

They have also gotten a little mixed up regard unenforceable. For a contract to be unenforceable it needs to at least exist (they are right however on the effects on unenforceability). What they have at present is no contract and no debt. I would write a letter back My standard letter is.

 

LETTER BEFORE ACTION

Section 7 – Data Protection Act 1998

RE – Your Reference

Dear Sir/Madam

We are finally in receipt of the documents that you have supplied in response to my Data Protection Act information request dated regard the above alleged debt. The disclosure of personal data is incomplete in that at least the following documents are missing.

A legible original signed copy of executed agreement with Terms and Conditions at the time of execution embodied within the agreement.

This is not an exhaustive list by any means, it is just an example of some of the information I am missing. Please forward these documents to me as soon as possible.

Accordingly, I have to tell you that you have not yet complied with your obligations under the Data Protection Act 1998. I must remind you that my request was made under this act and not as you appear to have confused section 77 of the Consumer Credit Act 1974

 

PLEASE NOTE if you are unable to supply us with what we request please state in your letter the reason to which you can not supply

You have a further 14 days to comply before we seek further action.

 

Yours faithfully,

 

 

 

Should they not produce at this point I would go to have all data removed by them as they have no right to collect or maintain it.

[Blomb]

Hi Liamgee.

 

Thank you for your assistance - I have actually sent this letter (or similar)already (should I send it again?) - this has been going on since January now and as I said I have tried pretty much every avenue to no avail.

Just wondered what would potentially happen now - will they continue to collect on the account? even though they say that ''they will not be seeking to enforce the agreement'' I really don't want to worry about defaults etc as I have a clean credit rating to date and of course worry about the future for mortgage etc...

 

You say: Should they not produce at this point I would go to have all data removed by them as they have no right to collect or maintain it.

 

What does this entail and what is the probability of this actually happening without going to court

 

Thanks Blomb:)

[Guest liamgee]

Well I have to admit that at the begining of this week I applied for an MOJ Licence. Simply because I was getting so many referals from people who I have done work at home that in order to continue without breking any laws I applied to be on the safe side. So Officially I guess I will be be a CMC. However I wont be charging upfront fees of any description what so ever (as I mostly do friends familiy and more so now friends of friends).

 

Seeing as there appears no contract I would suggest solicitors at this point I have a solicitors that I refer to when I have a claim with no contract. They go for write off (seing as there is no agreement) + moneys paid on the account + interest + damages (if there is any). Shop around for one if you need help PM me I will sort one out for you.

[Blomb]

Thanks Liamgee - congratulations and good luck for the MOJ Licence... next step law school!

 

I have read quite a few threads where some have actually gone to the court route without involving a solicitor, Like SMT37's thread... should I try this also or do you think a solicitor is the best option?

 

Blomb

[Guest liamgee]

Thanks Blomb

 

As regard solicitor DIY - Its up to you. Clearly if you are comfortable with dealing with going to court yourself then by all means do it yourself. What I will say is the solicitor I use do "no contract cases" on a "no win no fee basis" and claim all their costs from the other side. So I assume most other solicitors will do the same. Its a fairly open and shut one for them so its low risk such as accident claims. Personally the DIY route has only one upside and that is you retain control and plenty of downside. You would not find it difficult finding a solicitor for these either its worth just chatting to them even if it means picking their brains and then DIY ;-).

[diddydicky]

Hi All,

 

Here is an odd one (I have not seen this before) - not sure what it means but I shall try to explain in brief.

 

Sent CCA, SAR & CPR request to Halifax for Credit Card agreement... to date received nothing so finally after exhasting all avenues sent letter stating account in dispute.

 

Today I received this:

 

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

Thank you for your letter of #######

At the moment we are unable to provide a copy of the signed application form. However we can confirm our procedure has always been to obtain our customer’s signature to an agreement containing the prescribed terms before entering into a credit card agreement. As such, we are confident that the agreement remains enforceable.

The regulations define what is required of a ‘’copy’’. Whilst regulation 3 provides ‘’every copy’’ of an executed agreement... shall be a true copy’’, Regulation 3(2) (b) provides that a copy can omit any signature box, signature or date of signature.

In summary, to comply with Section 78, the copy does not need to be a copy with the customer’s signature on it. We do not have to produce an actual copy of the document signed. The purpose of Section 78 is to allow debtors access to their terms and conditions of their credit agreement and by providing the debtor with a true copy of the terms and conditions of the agreement we have complied with Section 78.

While we try to locate the full original agreement we will not be seeking to enforce the agreement. However, even if an agreement is unenforceable, the contract still has legal effect and is not void, the lender is merely prevented from seeking an enforcement order from the court.

I hope this clarifies our position

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

It might be worth me pointing out that this account is not currently in arrears - what does the letter mean? It seems to contradict itself on many points?!?

 

Any ideas what this actually means?

Help on this would be very much appreciated.

 

 

Thanks Blomb

 

 

the letter is basically saying that they cannot at present compky with your request because they cant find the documents- that may or may not mean that they dont have them 9their archives can take some searching)

 

Look in the template letters for a better response to the faliure to comply with the CCA request

 

In the meantime are you saying that you sent a CCA SAR and CPR request all at the same time? (what cpr sects did you use and what argument did you use for its use?)

 

also with no disrespect to Liamgee- if i were you i would be very careful about accepting offers or "indications" like the ones Liamgee seems to be making and certainly DO NOT exchange information by PM as he/she seems quite new on the forum and you have no way of knowing what he/she may be up to

 

His/her posts seems to come very close to "touting" and I may be wrong but i think it breaches the site rules to be touting

 

you dont need solicitors- the people on this site wil give you all the help you need

 

keep all your correspondence on these threads so that averyone can help you and ensure you do not fall victim to trolls or totally inexpeienced advice

[diddydicky]

Hi Liamgee.

 

Thank you for your assistance - I have actually sent this letter (or similar)already (should I send it again?) - this has been going on since January now and as I said I have tried pretty much every avenue to no avail.

Just wondered what would potentially happen now - will they continue to collect on the account? even though they say that ''they will not be seeking to enforce the agreement'' I really don't want to worry about defaults etc as I have a clean credit rating to date and of course worry about the future for mortgage etc...

 

You say: Should they not produce at this point I would go to have all data removed by them as they have no right to collect or maintain it.

 

What does this entail and what is the probability of this actually happening without going to court

 

Thanks Blomb:)

 

what is it you are trying to achieve Blomb?

 

if you are up to date with payments then Halifax are not going to take any action against you. nor will they be bending over backwards to help you.

 

CPR requests (i presume you made it under 31.16 ) are a means of avoiding court time and costs by obtaining relevant information from another party who you believe may be a party to proceedings with you

 

You would have to meet Halifax"s costs of provision of this information and there could be punitive costs implications if the court believes that you are using the court protocols as a "fishing Exercise"

 

If of course you decide to stop payments as a result of their allged failure to comply with CCA request then of course even though they are not allowed to they WILL give adverse credit information in due course and at present it can be tricky time consuming and expensive so if your credit file is important to you you need to decide what it is you are trying to acheive and if it is worth 9even if it is temporary) ending up with a negative CRA file!

 

can you give some more information about your requests, when they were made 9perhaps you can post them up)

 

i stress i am not legally qualified

 

regards

[caro]

Thanks Liamgee - congratulations and good luck for the MOJ Licence... next step law school!

 

I have read quite a few threads where some have actually gone to the court route without involving a solicitor, Like SMT37's thread... should I try this also or do you think a solicitor is the best option?

 

Blomb

 

There are times when it's best to get legal advice if it's a particularly difficult case, but there is a wealth of information and help available on CAG and the internet generally. If at the end of the day you're still unsure then consider legal advice, but frankly the experience of thousands of claimants can be as good as any solicitor, and the sense of pleasure of taking on the banks and institutions and beating them yourself is priceless.

[Blomb]

Hi diddydicky & caro - thank you for taking the time to look at my post.

I'm a little fuzzled as to what to do next...

 

I'd like to see if this is enfoceable - I have had the card for many years, (and a few more) paid the balance off entirely on numerous occassions - but now find myself in a situation where I am struggling at present - The interest each month is barely touching the balance - where for a few hundred quid only £15 or so is being paid off of the balance. Over the years I have actually paid the balance back tenfold with the interest payments.

 

At the moment all of the accounts that I have placed into dispute but they are still taking the direct debits and adding interest - any ideas what route I should take now?

 

I am thinking it's best now to do the court route??...

[diddydicky]

Ok this is where you are going to get different advice as there is more than one way to skin this particular cat- yu must choose which route you take!

 

Firstly all the time they fail to comply with your s78 request that cannot make charges/enforce the debt (they will but you just ignore it and claim it all back later if necessary!)

 

My own personal preference is to let them stew all the time they are not producing the s78 request.

 

respond only to acknowledge letters and re iterate that you still await the s78 documents ( there is no need to keep answering letters which are basically repetition).

 

and contact from DCA's send the bemused letter

 

if the OC threatens cour proceedings and has still not provided the docs thank them and tell them you look forward to seeing them in court!

 

as soon as any proceedings are brought you acknowledge receipt and then hit them with a CPR31.14 (which will have the same effect as you taking the lead in these matters with a 31.16 which i am sure someone will advise you on

 

the 32.14 route costs you nothing the 32.,16 route will invovle some costs!