Is this Halifax CCA enforceable please?

[joemay]

Ok, guys, recieved a response this morning from Halifax stating they are refusing my offer and will continue to file info with CRA's etc anddefault will go on file soon..... they also still stating that the agreement they sent is enforceable... Also in the post was a letter from Power2contact, to whom I will be writing and explaining that the account is in dispute...

 

But what can I do as far as Halifax are concerned? I really don't want to go to court with this....

 

In their letter have the confirmed that the agreement has ended?

[Stressed150]

Well, no they made no mention of the agreement ending....

[vint1954]

Ok, guys, recieved a response this morning from Halifax stating they are refusing my offer and will continue to file info with CRA's etc anddefault will go on file soon..... they also still stating that the agreement they sent is enforceable... Also in the post was a letter from Power2contact, to whom I will be writing and explaining that the account is in dispute...

 

But what can I do as far as Halifax are concerned? I really don't want to go to court with this....

Hi Stressed,

 

If they do not have a signed application\agreement, then they most likely will not go to court.

 

They will:

 

1. Insist that what they have supplied you with is all that they need to.

 

2. Try and get P2C to come and see you. Send the do not darken my door step letter. They will try and say, we can come and see you if we want. I have a response to that if you need it later.

 

3. Send all sorts of documents and treats, ignoring the dispute.

 

4. Try and say that there is no dispute. I reminded them that a dispute is a 2 sided situation.

 

You will have to keep plugging away with them, until they get bored and move it on.

 

If they have threatened court action, then CPR31.16 is the route. It doeas not mean that you have to follow through to court though. You are in controll of the situation.

[Stressed150]

No threats of court actionjust yet, and to be honest I'd rather avoid the whole court thing..... I'm desperate to settle this........

[Stressed150]

Bumping

[vint1954]

No threats of court actionjust yet, and to be honest I'd rather avoid the whole court thing..... I'm desperate to settle this........

Unfortunately, there is no speedy end to this, unless you make them an offer.

 

You have sent out the CCA request. Have you sent the account in dispute letter yet?

 

You just need to keep the process going in the correct order. They will send all sorts of rubbish. Just post it on here as it arrives.

[lilly white]

why dont you take them to court, well i know not easy however they will have listen to you.

 

have you ask them to consider to do this

 

65.—(1) An improperly-executed regulated agreement is enforceable against the

debtor or hirer on an order of the court only.

 

it just might get their attention.

[Stressed150]

I was under the impression that an illegible application is unenforceable even with a court order....

[lilly white]

yes it is however imho you need to think about your next move

 

 

With respect you need to get them to think we need to talk to this person

 

so this is a letter PT did.

 

have a read see what you think.

 

 

 

 

Simple

 

 

Dear Sir or Madam,

 

In respect of the credit agreement you have disclosed on the XXXXXXX 2009

 

After seeking legal advice from a Consumer Credit Law specialist i can comment as follows.

 

The agreement you disclosed is improperly executed, it is not compliant primarily with s61(1) Consumer Credit Act 1974 and the consequences are that as it stands the agreement is unenforceable and requires an order of the court pursuant to section 65(1) CCA 1974 to be remedy this problem. you are invited to make such an application for the said order.

 

Upon such an application i will rely upon the following points

 

The agreement is a fixed sum credit agreement, the rate of interest under the agreement is fixed for the term of the loan, there are no items entering into the charge for credit which are likely to be subject to change or variation therefore the agreement requires a term stating the Total Charge for credit with or without a list of its constituent parts, the agreement does not contain this term and therefore breaches Regulation 2 and Schedule 1 Para 9 Consumer Credit Agreement Regulations 1983.

 

The agreement must as a consequence of para 9, also include a term stating the total amount payable, again this agreement does not contain such information and therefore the agreement also breaches Reg 2 and Schedule 1 para 11 Consumer Credit Agreement Regulations 1983 and therefore the agreement does not comply with the regulations made by the secretary of state under the powers given by s60(1) of the 1974 Act and accordingly the agreement doesn ot comply with the strict requirements of s61(1)(a) Consumer Credit Act nor did it comply with s61(1) © Consumer Credit Act 1974

 

These breachs are clearly prejudicial to me as on entering into the agreement i was not givne the informatiuon that the Consumer Credit Act required to be made clear, i was not aware of the true cost of borrowing.

 

I would further highlight that Lloyds TSB subscribes to the Banking Code, as a requiremento f the code, they are required to lend responsibly and they clearly have failed in their duty under the code

 

my contention is that the court should not make an enforcement order, my authority for this contention would primarily be the case of Wlaker v SPPL in the Chester High Court before HHJ Derek Halbert. however if the court were minded to make an order for enforcement my argument would fall directly upon Rank Xerox Finance Limited vs Hepple CCLR 1994 1 and in this case the court taking into account a single breach of schedule 1 Agrement Regs reduced the amount of debt from £5000 to £500 to compensate the debtor for the prejudice caused

 

in view of this and in view of the fact you require an order from the court to enforce this agreement as clearly set out within the act, and the House of Lords in Wilson and First County Trust 2003 UKHL 40, i would invite your proposals to settle my dispute. i would also advise that i am informed that , i am able to apply to the court to consider this matter pursuant to section 142(1) CCA 1974 if no suitable agreement can be met.

 

however i trust this will not be necessary

 

I look forward to your settlement proposals

 

regards

[Stressed150]

Ok, I would need help in ammending the above letter and make it suitable for a credit card agreement though as I am totaly useless at legal jargon etc, which is also why Im worried about using the courts, however, I am willing to learn should this be necessary.....

[lilly white]

s150

 

have a a good read i am sure you are, however you will need to understand and please i am getting there and like a lot of people on here we learn together

 

i would suggest that you look at the CONSUMER CREDIT ACT

 

http://www.fisa.co.uk/downloads/CCA%201974.pdf

 

look at sections

 

i will be back

 

the very best regards lilly

[Stressed150]

Thanks for that link lillywhite, have been looking for it everywhere....xx

[Stressed150]

Can anyone else hlp as to what my next step should be, Halifax sent me an illegible copy of an application form, sent account in dispute letter, snt letter saying application is unenforceable, sent letter sayin £100 full and final settlement without admitting liability, yet they are having none of it....!!!

[Braveheart12]

Subbing.

[tosh1]

I think they will proberbly try and go for ccj then your next step would be to challange it.

[vint1954]

Try editing and sending something like this! You will need to take out sections that do not apply.

 

Dear sirs,

 

Ref account number xxxxxxxxxxxxxxx

 

Further to your letter dated xxxxxxxxx, the contents of which are noted, I would remind you that Halifax have failed to fulfill my numerous requests for a true copy on any agreement held by yourselves, for the above account.

 

In order to instigate litigation, Halifax will need to produce the alleged original signed agreement in court. This document is that which I have been asking Halifax to supply since xxxxxxxx2009, without success. I have made legal requests for a copy of this document under s78 of the Consumer Credit Act 1974 and latterly under CPR31.16. Both requests have been ignored and all that Halifax have supplied is an illegible application form front page and a set of Terms and Conditions. In these circumstances, as I am sure that you are aware, Halifax should not be perusing this debt.

 

In relation to what constitutes a true copy, please read the details below. 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 am now granting to you a further 7 days to produce a true copy of any 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 Terms and Conditions 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.

 

Yours sincerely

Edited July 28, 2009 by vint1954

[Stressed150]

Thanks for the above letter Vint, but I have written several letters to the tune of what the one above is saying only to get nowhere..... I do need something that will show them that I know exactly what I'm talking about, so I may go with the one Lillywhite has posted earlier and edit it to suit so alot of research involevd on the CCA.......

 

On a happier note (though you wouldn't think this under normal circumstance!) I received a termination notice from Halifax this morning, therefore, legally I only owe them £163.00 becuase of dodgy DN (date of service 11th July (was a Saturday)date of remedey 25th July), so Halifax are just digging deeper, but all the better for me....!!!

 

All of that aside, most of the money oweing on the credit card is made up of charges and there was also PPI onm there at one point, thebalance is around £970.00, the charges and PPI amount to just under £600.00 (not including interest)!!! Is it worth me tackling this from the charges point as well...? Although I do want to pursue the NO CCA no Debt as it will be a good learning curb and I will be better equipped to tackle other creditors...!!

 

Any advice welcome....

[lilly white]

s150

 

i hope you are well

 

the thing to do is look at the details, why it should not be enforce, and then stick that to the act.

 

Also you will need the 1983 reg cca as well.

 

i will give you a link in due course.

 

So as a learning curve see if you can puzzle out pt letter. i am aware it is a loan however a good tool to work on.

 

see you later

 

lilly

[diddydicky]

Thanks for the above letter Vint, but I have written several letters to the tune of what the one above is saying only to get nowhere..... I do need something that will show them that I know exactly what I'm talking about, so I may go with the one Lillywhite has posted earlier and edit it to suit so alot of research involevd on the CCA.......

 

On a happier note (though you wouldn't think this under normal circumstance!) I received a termination notice from Halifax this morning, therefore, legally I only owe them £163.00 becuase of dodgy DN (date of service 11th July (was a Saturday)date of remedey 25th July), so Halifax are just digging deeper, but all the better for me....!!!

 

All of that aside, most of the money oweing on the credit card is made up of charges and there was also PPI onm there at one point, thebalance is around £970.00, the charges and PPI amount to just under £600.00 (not including interest)!!! Is it worth me tackling this from the charges point as well...? Although I do want to pursue the NO CCA no Debt as it will be a good learning curb and I will be better equipped to tackle other creditors...!!

 

Any advice welcome....

 

i would advise that you now either write (far the best opition IMO) to halifax acknowledgeing receipt of their letter of unlawful termination of the agreement and accepting that the agreement is now at an end

 

alternatively you need to do some act which demonstrates that you have accepted their unlawful termination.

 

if you have not been making payments - then continuing what you were doing already is unlikely to do it.

 

IMO it is crucial to put the word unlawful before the word termination in your acceptance letter

 

there is no need for you to spell out why it is unlawful- thats for them to figure out (if indeed they spot it)

[Stressed150]

Thank you DD..... will certainly do this, and keep the thred updated with the outcome...xx

[Stressed150]

Ok, I have this as the letter

 

Dear sir/madam

 

RE: xxxxxxxxxxxxxxx

 

I write in response to the aove account number.

 

I write to acknowledge reciept of your letter dated xxx unlawfully terminating the alleged agreement in relation to the above account, and now believe this agreement to have ended as of 24th July 2009.

 

Is that sufficeient? I feel like I should add more to it....? Should I mention tht I now only owe £163.00 due to unlawfull termination?

 

Also, DD you mentioned that if I had not been making payments then continuing what I am doing is unlikely to have any effect...... I havn't made payments for atleast three months now.... what else can I do?

 

Should I push this with the dodgy DN and termination as well?

[diddydicky]

how about:-

 

 

i refer to your letter of XXX in which you unlawfully repudiate the agreement. I accept that unlawful repudiation and this agreement therefore is ended as of the date of this letter.

 

There will be genuine arrears due to you as of the date of this letter against which there may be a counterclaim for damages for your unlawful rescission of the agreement

 

I would suggest therefore in the circumstances and in order to resolve this matter that the ethical course of action would be for you to write off the balance of this account and remove any adverse information from my credit files whereupon i would agree not to pursue you for damages

[diddydicky]

the arrears wont be 163 quid because the termination does not take effect until you accept it so it will be a slightly higher figure

[Stressed150]

Oh..... I never realised that.

 

But is it sufficint for me to just state that I acknowledge that the agreement has now been terminated......??

 

Sorry for askin so many silly questions... alot of this stuff is new to me esp. to do with DN's and terminations...

[diddydicky]

does this help?

 

basically provided that they have already terminated (on the back of a dodgy DN) the general consensus is that you should acknowledge the termination- on the basis that if you do not- they can spot their mistake and rectify it on (their) alleged argument that if the DN was faulty then their TN was not lawful.

 

this can be done by writing and accepting it or doing some "act" which demonstrates that you have accepted it

 

My own preference (surprise) is to write

 

one action that would demonstrate acceptance would be to stop making payments upon receipt of the termination, however one cagger has found to his cost that since he was not making payments before the termination the judge would not accept this as he ruled that he was just doing what he had always been doing.

 

secondly (IMO) it is not sufficient to simply "accept" the termination and this is why i think that "doing an act" might not be sufficient

 

The reason is that if you accept "the termination" it seems to me that ALL you are accepting is their termination under CCA - there is no provision as far as i can see in the CCA which says that if a debtor agrees with this action that it then becomes an effective DN or termination

 

i would therefore write and accept the "unlawful" termination, rescission, repudiation - thereby making the point that they have stepped into contract law territory .there is no need to refer to the DN or indeed the reason why you consider it to be unlawful

 

Now some would say that you would "alert" the creditor to look at the faulty DN and give them the opportunity to re issue it -but since the "alert" is contained in the letter in which you acknowldedge the unlawful termination- and since it is the date of this acknowledgment that terminates the agreement, NOT their letter of termination- then who cares if they are "alerted" - to the dodgy TN- they can't issue a new DN on an agreement you just confirmed termination of!

 

sooner or later they are going to find out abut the dodgy DN- the notion that you can "sandbag" them with it in court is a bit too perry mason for me

 

(indeed if you read the BOS v Robert Mitchell appeal case re costs the judge there has some very interesting comments with regard to costs where the creditor was warned pre trial by the LIP of certain failings that should have been heeded instead of allowing the case to proceed -) this would support the view that far from "keeping the matter secret" there can be an advantage in pointing out the creditors failings pre trial

 

So there's one opinion - i am sure you wil get conflicting opinions then you can make your choice