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The light is near

Halifax are saying enforceable Agreement with no signature

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Hi All

 

Please can you help. I am currently with a debt managment company and this has helped alot. I have been with them for a year in September. I came across this web site iand t has inofrmed me that some agreements are not actually enforceable. I would like someone to look over my letter that I received recenlty and the paperwork to see what steps I need to take to sort this accoutn out as it is not enforceable. As you can see there is no copy of my actual agreement and I would like a suitable letter to respond back to them to sort out whether they are correct or whether I have leverage to challenge them. I so want to be able to sort this out as I woudl really like to donate to this orgianisation as it has really given me the strength to deal with these companies.

Edited by The light is near
I am unable to attach the document I want to show.

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Hi and welcome, Im sorry but there are no attachments to look at


PGH7447

 

 

Getting There Slowly

---------

 

Advice is given freely but is in no way meant to be taken as Gospel:-)

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I am unable to post attachemtns it says under posting rules:

 

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So I am going to write out the letter Halifax write to me to say:

 

I write in resposne to your request for your consumer credit agreement under section 78 of the consumer credit act 1974 (CCA)

I have enclosed with this letter a copy of your executed agreement, a copy of your current terms and conditions and a signed statement of your account.

The copy of the agreement enclosed with this letter comlies with the requirements of the consumer credit (cancellation Notices and Copies Documents) Regulations 1983 (the "regulations")Regulation 3(2) (b) provides that a copy can omit any signature box, signature or date of signature. In summary we are not required to produce a copy with your clients signature on it. By providing a copy of the agreement complying with the requirements of the Regulations the agreement remains enforceable.

By providing you with the documents attached to this letter, we have satisfied our obligation to provide a copy of the executed agreement under section 78. As such, the agreement you have with us is fully enforceable and we shall continue to trreat it as such. We will not be entering into any further correspondance with you regarding the requirements relating to the provision of copy agreements. If you are using the services of a claims management company we would like to remind you of the recent warnings issued by the the Ministry of Justice and Citizens Advice Bereau. You can find more details both at

http://www.justuce.gov.uk/newsrelease170209a.htmand

http://www.citizensadvice.org.uk/press 20090217

The Ministry of Justice headline reads "Business that miselad the public by claiming they can arrange for unpaid loans, credit cards debts otr other consumer debts to be written off have been told to stop or face action Justice Minister Bridget Prentice said today, as new guidance was issued by the Ministry of Justice.

Finally, we must remind you that failure to make payments under the agreement will result in collection activities and any default may also bwe reported to credit reference agencies.

 

I am confused at what response I should now give them.

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I am unable to post attachemtns it says under posting rules:

 

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So I am going to write out the letter Halifax write to me to say:

 

I write in resposne to your request for your consumer credit agreement under section 78 of the consumer credit act 1974 (CCA)

 

I have enclosed with this letter a copy of your executed agreement, a copy of your current terms and conditions and a signed statement of your account.

 

The copy of the agreement enclosed with this letter comlies with the requirements of the consumer credit (cancellation Notices and Copies Documents) Regulations 1983 (the "regulations")Regulation 3(2) (b) provides that a copy can omit any signature box, signature or date of signature. In summary we are not required to produce a copy with your clients signature on it. By providing a copy of the agreement complying with the requirements of the Regulations the agreement remains enforceable.

 

By providing you with the documents attached to this letter, we have satisfied our obligation to provide a copy of the executed agreement under section 78. As such, the agreement you have with us is fully enforceable and we shall continue to trreat it as such. We will not be entering into any further correspondance with you regarding the requirements relating to the provision of copy agreements. If you are using the services of a claims management company we would like to remind you of the recent warnings issued by the the Ministry of Justice and Citizens Advice Bereau. You can find more details both at

 

http://www.justuce.gov.uk/newsrelease170209a.htmand

http://www.citizensadvice.org.uk/press 20090217

 

The Ministry of Justice headline reads "Business that miselad the public by claiming they can arrange for unpaid loans, credit cards debts otr other consumer debts to be written off have been told to stop or face action Justice Minister Bridget Prentice said today, as new guidance was issued by the Ministry of Justice.

 

Finally, we must remind you that failure to make payments under the agreement will result in collection activities and any default may also bwe reported to credit reference agencies.

 

I am confused at what response I should now give them.

 

Hiya.

 

I'm assuming that Halifax havn't actually threatened court action yet ? I'm also assuming that you have made a proper CCA request ?

 

I wouldnt worry about their response, it's similar to that of many other card companies who suddenly find that they have no enforceable agreement (Capital one especially), what they are saying is technically true, the agreement they send you under a CCA 1974 request can omit the signature BUT if they were to contemplate court action against you then they would need the original signed agreement.

 

Have you SAR'd or CPR'd them ?. That would be the next step, when you have had responses from them then they may be the time to send them the standard 'in dispute' letters (various versions available from here) and stop your payments to them.

 

Andy

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They have not threatened court action. I have had an agreement with them via payplan since September. I was interested to see if I had an enforceable agreement with them. I am happy to do a SARN. My intentions are to see if they do not have an enforceable agreement then I was going to settle my account with an amopunt of say £1K. I will be getting a pension fund of £3K as my scheme is winding up and was going to offer them that amount as a settlement. I just want to get on with my life without any debt. I have another query with regards to Alliance & Leicester but not sure if I should post this on here or do another thread.

 

I sent this letter, and receive the response that I posted earlier:

 

This letter is a formal request pursuant to s.77/78 of the Consumer Credit Act 1974. I require you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.

 

I expect you to comply fully and properly with this request, within the statutory time limit. You are reminded that should you fail to comply with my request, the provisions of s.77 will apply.

 

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

 

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

 

I enclose a postal order in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose.

 

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee.

 

We look forward to hearing from you.

 

Yours faithfully

I am interested in what the next letter should be to them would this be suitable but write tot he complaints deaprment as I have noticed someone having similar issues

Account Number: XXX

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Yours faithfully

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Hi Andy

Do you have any suggestions for my next letter. Do I send a SARN off. I also got a smilar letter from Barclaycard yesterday too. Wondered hat the next best step is to take.

 

thanks

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I also started an agreement with pay plan @ HBOS suggestion, but they didn't stop the interest charges (25%) so I stopped pay plan.

 

Did they stop interest charges for you?

 

I also wrote to them and got the same letter back; but my agreement was July 2007 and I'm not sure I'm covered under the not enforceable due to the amendment to section 127

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Hi Andy

Do you have any suggestions for my next letter. Do I send a SARN off. I also got a smilar letter from Barclaycard yesterday too. Wondered hat the next best step is to take.

 

thanks

 

Welkl..The general process would be..

 

1) Request CCA

 

They may send an agreement which complies with CCA regs (i.e no signature, etc) BUT isn't 'enforceable'

 

2) Make SAR request

 

This should be 'everything', if its like my Cap1 account, this unearthed another signed agreement but again unenforceable.

 

3) If they dont respond to the SAR request then you could use the CPR route to force them to respnd although from here it would get tricky.

 

Steps 2 and 3 are kind of just extra checks after 1 to see what other agreements they actually hold.

 

You mention settling your account . How ?. By paying the full amount ? Im afraid its unlikely they will accept less even if you scream ansd shout n claim they dont have an enforceable agreement.

 

Andy

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Hi Guys

thanks for responding.

 

Andy, I can't afford the SARN If they cannot produce the paperwork does that mean then it is not enforcable and I can stop paying Payplan? I dont understnad when you say it gets tricky. I am going to send the letter which goes into detail about how it is an offence to register my details with a credit reference agecny if they do not have my signed consent????

 

I am getting a pension lump sum payment of £3K and was going to offer all my creditors £1K each for full and fianl settlement???? Good idea or not really.

 

Ian,

They did stop my interest with Payplan and they were quite helpful but now they dont have a copy of my credit agreement they should not be publishing my ifnroamtion with credit reference agencies.

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Welkl..The general process would be..

 

1) Request CCA

 

They may send an agreement which complies with CCA regs (i.e no signature, etc) BUT isn't 'enforceable'

 

2) Make SAR request

 

This should be 'everything', if its like my Cap1 account, this unearthed another signed agreement but again unenforceable.

 

3) If they dont respond to the SAR request then you could use the CPR route to force them to respnd although from here it would get tricky.

 

Steps 2 and 3 are kind of just extra checks after 1 to see what other agreements they actually hold.

 

You mention settling your account . How ?. By paying the full amount ? Im afraid its unlikely they will accept less even if you scream ansd shout n claim they dont have an enforceable agreement.

 

Andy

 

Um, I'm a bit confused.

 

There is no CPR route - as the Civil Procedure Rules does not allow you to demand any information from the creditors. You can ask a judge to order them to supply it, but then you end up paying all the costs.

 

Also, using the Consumer Credit Act 1974, to get sight of this document is probably the weakest approach of all, as it distinctly says that they do not have to supply you with a copy of anything that contains a 'signature box'.

 

A Subject Access Request costs £10, and again, is not a formal demand for them to supply this document. And asking politely aint going to work.

 

Is there a clear and legal way to actually get to see this document, or am I just sailing up the creek without a paddle?

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Um, I'm a bit confused.

 

There is no CPR route - as the Civil Procedure Rules does not allow you to demand any information from the creditors. You can ask a judge to order them to supply it, but then you end up paying all the costs.

 

Also, using the Consumer Credit Act 1974, to get sight of this document is probably the weakest approach of all, as it distinctly says that they do not have to supply you with a copy of anything that contains a 'signature box'.

 

A Subject Access Request costs £10, and again, is not a formal demand for them to supply this document. And asking politely aint going to work.

 

Is there a clear and legal way to actually get to see this document, or am I just sailing up the creek without a paddle?

 

Others have used the CPR route and indeed gone to court to get sight of (or not as the case may be) the actual document, that is i believe the only 100% sure fire way of forcing them to hand it over...Im no expert on this but if you browse this site youll find more knowledgable people who have gone down this route.

 

A SAR request SHOULD provide you with it too, because it is supposed to include everything, companies vary what they send you though, ive had a few scraps of paper from some and a huge package from Egg that seems to contain everything ever !

 

Although the question may be..why are you so desperate to see this document ?. If you believe it doesnt exist (or is not enforceable) then you can just stop paying and wait to see if they start court action (unlikely if the document is lost or unenforceable).

 

Andy

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Others have used the CPR route and indeed gone to court to get sight of (or not as the case may be) the actual document, that is i believe the only 100% sure fire way of forcing them to hand it over...Im no expert on this but if you browse this site youll find more knowledgable people who have gone down this route.

 

A SAR request SHOULD provide you with it too, because it is supposed to include everything, companies vary what they send you though, ive had a few scraps of paper from some and a huge package from Egg that seems to contain everything ever !

 

Although the question may be..why are you so desperate to see this document ?. If you believe it doesnt exist (or is not enforceable) then you can just stop paying and wait to see if they start court action (unlikely if the document is lost or unenforceable).

 

Andy

 

I'm not trying to poach the thread here, so I'll just quickly answer the question:

 

I need the copy of the signed agreement because it is vital for my case against the Credit Reference Agencies to remove my credit file entries. If they have it - I carry on paying (if it's a goodun), if they don't - then why don't they just tell me and not lead me on a merry dance! If anyone has a link to a thread to for a successful court action for site of an agreement, I'd appreciate it. Cheers also, Andy.

Edited by iddles10

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I was glad to a discussion going on. I sent a letter to the data Controller and the complaints department to say that i do not have a signed agreement. But they have sent me exactly the same paperwork. I am very scared about stopping payment to them as it will be so difficult to remiove a default if they apply it. I am not in a position to pay the £10 but I have no option. I have also advised payplan that the money is to be placed on hold until they have produced this agreement. If they can't produce it then they are not able to divulge this information on my cerdit file buit I know they will. They seem to win all the time. Dotn know what to do as this is not enforcable.

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I was glad to a discussion going on. I sent a letter to the data Controller and the complaints department to say that i do not have a signed agreement. But they have sent me exactly the same paperwork. I am very scared about stopping payment to them as it will be so difficult to remiove a default if they apply it. I am not in a position to pay the £10 but I have no option. I have also advised payplan that the money is to be placed on hold until they have produced this agreement. If they can't produce it then they are not able to divulge this information on my cerdit file buit I know they will. They seem to win all the time. Dotn know what to do as this is not enforcable.

 

Aha..yep youve hit the nail on the head !..Without an enforceable agreement you can stop paying and without one they are very unlikely they will start court action BUT (theres always a 'but') although in theory they shouldnt take further action it is possible the debt will be passed to DCA's and defaults added to your credit file, there are a few cases on here of CAGers who have then had the defaults removed but its a battle !

 

Andy

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so I dont really have much option as I dont want to be going down the route of it bneing refrred to a DCa and then a defalut put on file becuase I am not paying. Then have to fight the default to get removed. It has taken 7 months to get a default removed with Alliance & Leicester. Maybe what I will do is get all info on my file, work out how much I have paid, how many charges need to be refunded and then how much I have spent and then offer full and final settlement on the basis that they do not have a CCA and therefore work out the difference of waht I owe them and then debt gone hopefully.

 

I thought that it would be a process that would be failry easty to do but I cant go through having defaults and then being removed. Can I argue to them that as they cannot find my signed authority to dsiclose information to the credit reference agencies that they are to take this off of my file and I continue to pay them? I am at a real loss.

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so I dont really have much option as I dont want to be going down the route of it bneing refrred to a DCa and then a defalut put on file becuase I am not paying. Then have to fight the default to get removed. It has taken 7 months to get a default removed with Alliance & Leicester. Maybe what I will do is get all info on my file, work out how much I have paid, how many charges need to be refunded and then how much I have spent and then offer full and final settlement on the basis that they do not have a CCA and therefore work out the difference of waht I owe them and then debt gone hopefully.

 

I thought that it would be a process that would be failry easty to do but I cant go through having defaults and then being removed. Can I argue to them that as they cannot find my signed authority to dsiclose information to the credit reference agencies that they are to take this off of my file and I continue to pay them? I am at a real loss.

 

 

It depends on your circumstances, if you can stop paying a card company on which you 'owe' a large amount AND your credit rating is already a mess then it may be worth doing, if its a small amount and/or you are just about to apply for a mortgagre for example things may be very different !

 

Andy

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I'm not trying to poach the thread here, so I'll just quickly answer the question:

 

I need the copy of the signed agreement because it is vital for my case against the Credit Reference Agencies to remove my credit file entries. If they have it - I carry on paying (if it's a goodun), if they don't - then why don't they just tell me and not lead me on a merry dance! If anyone has a link to a thread to for a successful court action for site of an agreement, I'd appreciate it. Cheers also, Andy.

 

Hi Iddles, try this thread for CPR Stratergy, I'm at the CPR letter 2 stage and waiting for replies.

 

Regards

Mrs_P

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