Spam Getting to Grips with Halifax.

[Spamalot]

Hi there legal eagles,

 

It's taken a while, but I'm just getting around to sorting out the paperwork from my other creditors.

 

I have three ....yes three accounts with the Halifax. A Credit Card, A loan and an overdraft.

 

I am going to dedicate this thread to the loan and would welcome some expert opinion on some of the documents I have.

 

This is a copy of the agreeement I have.

 

Halifax Loan Agreement picture by Spamalot_bucket - Photobucket

 

This is a copy of the first default notice I received.

 

Halifax Default 2007 picture by Spamalot_bucket - Photobucket

 

Extremely defective having given only 9 days from date of letter!

 

This is a copy of a letter from a DCA demanding full payment dated 2 days after default remedy time.

 

Albion 'Termination' picture by Spamalot_bucket - Photobucket

 

And here is another default from Halifax EXACTLY a year later....still defective as yet again only a 9 day remedy!

 

Halifaxdefault2008.jpg picture by Spamalot_bucket - Photobucket

 

This account was eventually passed to Blair Oliver and Scott and I've been making arranged payments to them for a while but having just got around to actually READING the corres I've got I am wondering whether they really have the right to demand payment etc.

 

Any advice welcomed. Bearing in mind these toerags have been updating my credit file on the back of these dodgy defaults!!

 

Thank you Spam.

[car2403]

Okey dokie... Bad news and good news

 

The bad news is that the agreement looks enforceable as it has the prescribed terms for a loan.

 

The APR on it is wrong - they have underquoted it, as it should be 9.332%, not 8.8%. This means the interest rate is wrong and not within the permissible tolerances under the regulations;

 

Permissible tolerances in disclosure of the APR

 

1A. For the purposes of these Regulations, it shall be sufficient compliance with the requirement to show the APR if there is included in the document

 

(1) a rate which exceed the APR by not more than one; or

 

(2) a rate which falls short of the APR by not more than 0.1; or

(3) in a case to which either of paragraphs 2 or 3 below applies, a rate determined in accordance with the paragraph or such of them as apply to that case."

 

The agreement is unenforceable due to s.60(1)/s.61(a) and s.127(3).

 

Good times.

 

You've already highlighted the Default Notice issues, but that is always secondary to holding a compliant agreement anyway. The agreement is incapble of being Defaulted/Terminated under the Act, as it was improperly executed and is irrevocably unenforceable. The fact they've Terminated, means it's unlawful.

 

The Defaults on your CRA file should be removed, as a result of all this.

 

I have a feeling they won't give up so easily, though.

[Spamalot]

Thanks Car. very much appreciated

 

I shall now put my seatbelt on and look forward to a bumpy ride! But how to start I'm not so sure.

 

Do I just withold payment and wait for them to chase me and go from there? Or should I go straight on the offensive demanding they remove my defaults..

 

Sorry to need spoon feeding, but I've my head in the sand for so long I can't make a decision. I've only just made a payment to them so I have at least a month before they start bothering me, so any suggestions re my next move would be gratefully received.

 

Cheers, Spam.

[car2403]

Have a looky at the link in my signature to the Surleybonds letter, this might be a start.

 

Here's how I've used it in the past;

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/110146-car2403-hfc-bank-default.html

 

http://www.consumeractiongroup.co.uk/forum/barclays-bank/110184-car2403-barclays-bank-default.html

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/110150-car2403-rbs-plc-default.html

 

Need any more?

[Spamalot]

I'm really embarassed about this but...

 

How did you work out the APR?

 

for the life of me I can't see how you get it... never was much use at maths

 

I Keep looking at the agreement and seeing the monthly rate of 0.69% and timesing that by 12 for APR I make it 8.28% thats still not the 8.8% as quoted but it's not much different.

 

Where do you get the 9.332% from please?

 

Cheers, Spam:)

[Undercover-Elsa]

Hi Spamalot

Just checking in and subbing to your new thread. Car seems to have got it well covered

Elsa x

[Spamalot]

Thanks Elsa...

 

Just raining on my own parade at the minute 'cause I can't work out how Car got that interest rate.

 

Hope someone will be along soon to put me out of my misery.

 

Spam:)

[car2403]

I'm really embarassed about this but...

 

How did you work out the APR?

 

for the life of me I can't see how you get it... never was much use at maths

 

I Keep looking at the agreement and seeing the monthly rate of 0.69% and timesing that by 12 for APR I make it 8.28% thats still not the 8.8% as quoted but it's not much different.

 

Where do you get the 9.332% from please?

 

Cheers, Spam:)

 

To be honest, I ignored the monthly interest rate as an APR is stated and it should be accurate.

 

Use any APR calculator and input the loan amount and the APR and repayment period and it will show you it's wrong.

 

Try these;

 

Loan & APR Calculator

 

Loan calculator

 

If the APR is misstated beyond the permissable tolerances, their donkey is filleted

 

EDIT: Oh, the reason you don't times the monthly interest rate by 12, is that it will be compounded monthly - so interest from month 2 will be less than month 3, but more than month 1. If you don't compound the monthly rate, it comes to 8.46% annually, but the APR is the cost of borrowing over a 12 month period. (Including compound interest)

[car2403]

http://www.consumerforums.com/resources/templates-library/51-guidance-notes/233-interest-tutorial

 

[Spamalot]

Thanks Chris,

 

I've been on the loan calculator and worked out this so far....bear with me please..

 

13000 over 7 yrs at 8.8% = £205.64 pm

total = £17273.58

int. £4273.58

on top of that there was £130 arrangement fee

£130/84 =£1.55 add to 205.64 = 207.19pm

 

 

so I tried £ 13130 x 8.8% which gave me

 

£207.69 pm

£17446.30total

£4316.32 int Still not what the agreement states:(

 

The closest I got was £13130 x @ 8.95% to give a monthly payment of £208.61, £17523.32 total repay and £4393.32 int.

 

But it's still not

 

£208.86 pm

Loan £13000

total charges £4544.24 (including £130 arrangement fee)

Total to pay £17544.24

 

Is it still enough discrepency to make it unenforceable or is it inside the tolerances?

 

The calculater gave up on me when I tried to work out the last option. I'm still not sure if they're charging interest on the arrangement fee or whether they added it after they'd calculated interest.....

 

Got it working again...tried 13000 @ 9% apr came close but still not exact... £206.85pm + £1.55pm arrangement fee = £208.40

Total to pay £17375.26 (+130 = £17505.26)

Interest £4375.26 ( + 130 = £4505.26)

 

Gawd my head hurts!!! Think I need to go and lie down.

 

Thanks, Spam

Edited June 13, 2009 by Spamalot
Addition... Literally

[car2403]

The agreement states that the acceptance fee was added to the total charge for credit, so it should be included in the total interest.

 

As they have misstated by more than 0.1% under the APR, that makes the interest rate (in fact, the total charge for credit will be misstated as well!) wrong, so therefore unenforceable.

 

I'm no maths man (it's the reason I manage people, not numbers!) but either way I've done it, it's still wrong...

[Spamalot]

Thanks again Chris, sorry for being such a pedantic pain in the proverbial!

 

Consider your scales well and truly tipped!

[car2403]

Thanks again Chris, sorry for being such a pedantic pain in the proverbial!

 

Consider your scales well and truly tipped!

 

Not pedantic at all - if this goes further, you need to know what you need to know to be successful.

 

In that vain, I've asked the site team to double check my figures and just make sure we're all on the same page with this one!

 

[Don't let it be said I'm doubting myself, of course ]

[steven4064]

I have had a look at teh figures using Dualcalc:

 

£13000 payable as 84 payments of £205.64 is indeed 8.8% with interest of £4273.76. TCC is this plus £130.00 giving £4403.76

 

Getting the rate of interest wrong would make the agreement not properaly executed as rate of interest is a prescribed term in schedule 1 of the Consumer Credit (Agreements) Regulations 1983.

 

However, it would not make the agreement unenforceable as rate of interest is not a prescribe term in schedule 6 if both the payement amount and number of payments is given, as in your case.

[car2403]

Bugga... See, this is why I don't get too excited - I'm not known for being wrong, but... (Note to self, sort Dualcalc access out)

 

Anyhoo, doesn't really matter as the Default/Termination issues are fatal anyway...

[Spamalot]

Bugga... See, this is why I don't get too excited - I'm not known for being wrong, but... (Note to self, sort Dualcalc access out)

 

Anyhoo, doesn't really matter as the Default/Termination issues are fatal anyway...

 

There's more than one way to fillet a donkey... ;-)

 

Thanks for your input Steven/ Chris

 

Onwards and upwards.

[diddydicky]

Okey dokie... Bad news and good news

 

The bad news is that the agreement looks enforceable as it has the prescribed terms for a loan.

 

The APR on it is wrong - they have underquoted it, as it should be 9.332%, not 8.8%. This means the interest rate is wrong and not within the permissible tolerances under the regulations;

 

 

 

The agreement is unenforceable due to s.60(1)/s.61(a) and s.127(3).

 

Good times.

 

You've already highlighted the Default Notice issues, but that is always secondary to holding a compliant agreement anyway. The agreement is incapble of being Defaulted/Terminated under the Act, as it was improperly executed and is irrevocably unenforceable. The fact they've Terminated, means it's unlawful.

 

The Defaults on your CRA file should be removed, as a result of all this.

 

I have a feeling they won't give up so easily, though.

 

even more good news

 

the second DN did not give you 9 days it only gave you 5 days!

 

20th March 2008 was a thursday

 

if posted 20th the effective date of service would be Monday 24th March

 

that gave you 25/26/27/28/29 = 5 days

[Undercover-Elsa]

Hi Spamalot:)

This thread is fascinating!

I never thought to double check my APR etc..just done a quicky and I appear to have been paying £10 a month too much..adding over £1000 to the total loan!

I'll start my own thread and get it assessed properly, if I may

Looking good for you

Elsa x

[Spamalot]

Hi Spamalot:)

This thread is fascinating!

I never thought to double check my APR etc..just done a quicky and I appear to have been paying £10 a month too much..adding over £1000 to the total loan!

I'll start my own thread and get it assessed properly, if I may

Looking good for you

Elsa x

 

Good luck with that Elsa, I'd only be paying an extra £140 so it's not as bad as yours! Let me know when you start your thread. ;-)

 

Ok, Back to being a dummie..

 

We've established that the agreement is enforceable even though it has been improperly executed with incorrect interest rate quoted. As this is my copy I shall send off a CA request anyway and see whether they've got one as well

 

Now the burning question with regards to termination..

 

Can the agreement be terminated by a DCA instructed by Halifax asking for the full amount, or must the demand come from Halifax themselves?

 

The answer to this question will also be pertinent to my credit card thread (to be started soon)as I have exactly the same situation there....dodgy default...DCA asking for full amount

 

Thank you,

Cheers, Spam

[car2403]

Nope, we've established that the agreement is not irredeemably unenforceable under s.127(3) as the rate of interest isn't a prescribed term for this type of agreement. Fair do's. That doesn't mean that it is automatically enforceable, though, as it is improperly executed and could be unenforceable under s.127(1)(i) if, and it's a big if, you were prejudiced as a result of the improper execution. Now, if this was me, plus should it be true, etc, etc, I'd be seriously reconsidering the position I was in when I took this loan out - if I didn't have a chance to compare this loan with others, if I did consider other loans by comparing APR stated, etc, I would think you have a decent case for showing you were prejudiced enough to not have the agreeement enforced against you.

 

To answer your question - it really depends on the Judge. I think the agreement was terminated after the 1st Default Notice was issued and you didn't comply with it, but they didn't send you a Termination Notice. The fact they then get a DCA on to the debt, indicates, according to the ICO, that the agreement was at an end. The 2nd Default Notice is just a bonus, as they can't Default the same account twice, IMHO, if you read the wording of s.87/s.88 CCA 1974 - and indeed can't Terminate twice if you read s.98 of the same. The fact the DCA is asking for the full amount, rather than just the arrears, also indicates full Default/Termination, IMHO...

[r&b]

The fact the DCA is asking for the full amount, rather than just the arrears, also indicates full Default/Termination, IMHO...

 

hi spam,

i think car is absolutely rite, this is termination. once they ask for the full amount they are no longer allowing you a future credit agreement and have therefore ended that which preceeded. BRW has waxed lyrical in very lucid terminology on this issue on several threads, making it easy to understand. he has espoused the unlikely (but possible) example where a DCA could, in theory, continue a credit agreement if the default was remedied, but on asking for the full amount that eventuality disappears.

 

post #33 by BRW here may help:

amex Stat Demand, what to do ? - Page 2 - The Consumer Forums

 

im sure u have seen it but this is another thread worth a trawl:

A Tale of a Dodgy DN - The Consumer Forums

[Spamalot]

hi spam,

i think car is absolutely rite, this is termination. once they ask for the full amount they are no longer allowing you a future credit agreement and have therefore ended that which preceeded. BRW has waxed lyrical in very lucid terminology on this issue on several threads, making it easy to understand. he has espoused the unlikely (but possible) example where a DCA could, in theory, continue a credit agreement if the default was remedied, but on asking for the full amount that eventuality disappears.

 

post #33 by BRW here may help:

amex Stat Demand, what to do ? - Page 2 - The Consumer Forums

 

im sure u have seen it but this is another thread worth a trawl:

A Tale of a Dodgy DN - The Consumer Forums

 

Thanks for looking R&B,

 

Sometimes I just don't trust my own judgement! Started to doubt myself when it was a DCA who demanded payment in full on behalf of Halifax... not Halifax themselves and I wondered if that was 'legally binding' could Halifax backpeddle and say ' oooh naughty DCA we didn't ask them to do that!

 

Looking for belt and braces again... you know me ;-)

[r&b]

ur doin a pretty gd job spam, id trust u. i wudnt trust the judgment of a financial institution again tho

[Spamalot]

i wudnt trust the judgment of a financial institution again tho

 

With you on that one!!!

[diddydicky]

Good luck with that Elsa, I'd only be paying an extra £140 so it's not as bad as yours! Let me know when you start your thread. ;-)

 

Ok, Back to being a dummie..

 

We've established that the agreement is enforceable even though it has been improperly executed with incorrect interest rate quoted. As this is my copy I shall send off a CA request anyway and see whether they've got one as well

 

Now the burning question with regards to termination..

 

Can the agreement be terminated by a DCA instructed by Halifax asking for the full amount, or must the demand come from Halifax themselves?

 

The answer to this question will also be pertinent to my credit card thread (to be started soon)as I have exactly the same situation there....dodgy default...DCA asking for full amount

 

Thank you,

Cheers, Spam

 

halifax are bound by the words and deeds of anyone acting on their behalf!