Halifax Credit Card - default notice. Help please

[mjc007.5]

Good morning all,

 

Please bear with me if this gets a little lengthy, still finding my feet (and grateful to have found this place and the people here!).

 

Attached DN in relation to the above which I cannot really meet. Arrived 1st July and as you can see states I must pay before 9th July.

 

Initially appears to be valid DN but in light of previous paragraph above my questions for you please are as follows:

 

1. Reading related threads here gives me the impression that best case scenario if I work on their posting on day of production by first class post date of service would be taken to be two days after that (so dated 25th June with date of service 27th June)

2. If this is correct statutory date for payment (if I was able) would be midnight fourteen days later (11th July).

3. On this basis in specifying the 9th July they are incorrect and hence I have an invalid DN?? (hopefully )

4. If taken to have been posted 2nd class and days were based on working days then potential date of service and statutory date for payment are way back from here and again as a result invalid DN???

5. In relation to page 2, if you read paragraph 3 it states that payment or satisfactory proposals must be made within 28 days. I realise this is supposed to refer to the registering of a default with CRA but is it legit to have the two different time lines in a DN in this way??

 

General advice on the above and resulting suggestions on way to proceed gratefully recieved.

 

Many thanks

[mjc007.5]

Oh bugger, miniature thumbnails! will try again with attachments - sorry!

[mjc007.5]

photobucket must be backing up at this ungodly hour as cannot get on to it. Trying via zip file instead, fingers crossed.

Halifax Default zip file.zip

[I've got no money]

It's not the worlds greatest copy but is NOT valid - it should give 14 days after service for remedial action

 

I am a bit confused - the Notice appears to be dated 2008??? or is it my eyesight certainly the remedial action is 8th July 2008. Have you got the envelope it came in?

 

Can you clarify - the original post seems to imply that you have just received it

 

 

 

Have you kept the envelope - was it sent

[mjc007.5]

Many thanks for the reply - my suspicion about the 14 days is correct then? Have I interpreted (even the best case scenario) the date of service and the date for payment correctly? I have not been able to confirm with certainty if the 14 days actually runs as "working days" or clear days from date of service? (although either way suspect they have not given me 14 days!

 

As to the copy and dates - apologies - scanned with elderly HP officejet V40/microsoft software and think at least the HP may be reaching it's natural end (has done us proud for best part of 8 years!).

 

The notice is dated 25th June 2009, gives me (on page 1) until 9th July to pay, arrived with me in post on 1st July. I have kept the envelope (previous readings here) but no obvious marks/idea as to exact posting date as it is a prepaid/bulk mailer (although does have UKML and then a serious of numbers in computer generated print on the front?).

 

On page 2 we still appear to have the contradictory 28 day time frame for repayment or to come to an arrangement?

 

Any and all opinion on the specifics and suggested routes forward (I cannot pay the whole lot) gratefully recieved.

[I've got no money]

Many thanks for the reply - my suspicion about the 14 days is correct then? Have I interpreted (even the best case scenario) the date of service and the date for payment correctly? I have not been able to confirm with certainty if the 14 days actually runs as "working days" or clear days from date of service? (although either way suspect they have not given me 14 days!

 

As to the copy and dates - apologies - scanned with elderly HP officejet V40/microsoft software and think at least the HP may be reaching it's natural end (has done us proud for best part of 8 years!).

 

The notice is dated 25th June 2009, gives me (on page 1) until 9th July to pay, arrived with me in post on 1st July. I have kept the envelope (previous readings here) but no obvious marks/idea as to exact posting date as it is a prepaid/bulk mailer (although does have UKML and then a serious of numbers in computer generated print on the front?).

 

On page 2 we still appear to have the contradictory 28 day time frame for repayment or to come to an arrangement?

 

Any and all opinion on the specifics and suggested routes forward (I cannot pay the whole lot) gratefully recieved.

 

As far as deemed service is concerned:-

First class Post is deemed to be delivered two business days after posting. The 25th of June was a Thursday - weekends don't count so it would be deemed delivered on the following Monday, the 29th which would mean 14 days from the 30th which would be the 13th July

Second class post is deemed delivered four business days after postage, which would be the 1st of July you then have 14 days after service - so it would be the 15th July

 

So either way its' invalid

 

As to what you do next you should NOT under any circumstances tell them it is invalid, certainly not until they have terminated the agreement.

 

Treat it as any other debt - is there a CCA is it enforceable, are there default charges etc etc

[mjc007.5]

Thank you very much indeed

 

Occurs to me may have started this in the wrong place - if so apologies to all and are the site team able to move it?

[mjc007.5]

They do appear to have a valid CCA but some of balance is made up of default charges.

 

Which route next? Understand should keep invalid DN to myself for now (does anyone have a link to the process for what to do when they invariably proceed to termination and sell on of the agreement?).

 

I am not sure where to go next - subject access request? Make affordable offer of repayment? (they have been getting £10 a month for a couple of months now whilst I try and sort sustainable plan out of my debt hell). As part of this the card has obviously been shredded! (in itself this was actually quite therapeutic! )

 

Thanks for looking, advice and support to all

[mjc007.5]

Any further views about how best to approach? Realise that this is probably not in the right thread and many posters today are dealing with court papers and the such so whatever anybody can offer gratefully recieved.

 

Many thanks

[I've got no money]

They do appear to have a valid CCA but some of balance is made up of default charges.

 

Which route next? Understand should keep invalid DN to myself for now (does anyone have a link to the process for what to do when they invariably proceed to termination and sell on of the agreement?).

 

I am not sure where to go next - subject access request? Make affordable offer of repayment? (they have been getting £10 a month for a couple of months now whilst I try and sort sustainable plan out of my debt hell). As part of this the card has obviously been shredded! (in itself this was actually quite therapeutic! )

 

Thanks for looking, advice and support to all

 

Can you post a copy of the CCA - it might be an idea to double check that it is enforceable - when did you first apply for it?

[mjc007.5]

Hi IGNM - cannot put my hand on the CCA at present but this account is under two years old. I was actually using the agreement that I had - have not requested this from them yet. I get the impression that I should start with this? If so, given the DN and likelihood of further action should I do this under CPR instead of CCA??

 

Sorry if a bit naive, steep learning curve here

[I've got no money]

I have to say that it is likely to be enforceable BUT even if it isn't the court wil have a discretion to enforce.

 

I'd be inclned to do a CCA request to start with - it might also be an idea to do a data protection SAR as well

[mjc007.5]

That my worry - if it is enforceable and agree with you likely to be so then when does the invalid DN become useful?? Also, where do we go with the default charges (pursue seperately, or revise repayment offer to include request they refund - might be lucky??)

 

I will start with CCA, re-state repayment proposal again and move on to SAR once time frame for CCA expired? Does that seem like reasonable plan here?

[lee32uk]

Just wait for them to terminate the account.Then because they have issued a defective default notice they will only be able to ask for the arrears at the time of default.

[vint1954]

Just wait for them to terminate the account.Then because they have issued a defective default notice they will only be able to ask for the arrears at the time of default.

 

Just having a quick look here MJC, the DN is faulty on dates and also if the sum includes default charges and interest, then this also renders it faulty.

 

Banker Rhyms with, is an expert on these, so when you get your termination, he can perhaps advise, though he is busy.

 

Halifax have done the same with me. Faulty DN and terminated. but they behave as though the account is live? Keep sending statements etc.

 

Vint

[mjc007.5]

Many thanks Vint, will update when I hear from them. You are right I am continuing to get statements as well!

[vint1954]

Many thanks Vint, will update when I hear from them. You are right I am continuing to get statements as well!

They realy are the pits.

 

It's a question now of keeping everything in order and not acknowledging the debt from now on.

 

Be guarded in the wording of any letters that you send.

[mjc007.5]

Hi folks,

 

Well we are still waiting on the CCA request (although agreement within last 2 years so may well turn out to be enforceable). In the meantime the following has arrived! Any advice about next steps gratefully recieved.

 

Also, with potentially working with CCCS on a DMP - I am inclined to include most of my disputed debts in it for now but given we have previously decided this one has a faulty DN where do we go?? (Is there something about my not acknowledging until they terminate??).

 

many thanks

Halifax termination letter 001.zip

[mjc007.5]

Any views/help please? Not sure where this goes next??

[I've got no money]

You could do them a letter explaining that the DN is defective and that their action in terminating the agreement is a repudiatory breach of contract and that you accept the repudiation of the contract and that consequently the contract is at an end and that you are no longer bound by it. For the avoidance of doubt you confirm that you do NOT affirm the contract and consider that it is terminated.

[mjc007.5]

Hi all,

 

Update on the above - we have established via the good people here that they appear to have terminated without a valid DN. Latest correspondence attached from a DCA acting for them (?suggests not in fact terminated in their eyes?). Also no reply to my CCA request and they are out of time?? (well over 14 days now).

 

I obviously will not be calling on the phone and up to now apart from the CCA request I have kept quiet but what's my next step? Do I answer the DCA? At this stage do not want to end up near a court (although once things on a more stable footing overall I would certainly be happy to go there with this lot and a number of others!)

 

If I was not dealing with so many creditors/DCAs at the same time I would probably not be asking so many questions as the info is here but my head is spinning a bit at the moment so thanks for bearing with me (and the good advice)

Halifax DCA Letter 1 001.zip

[mjc007.5]

bump - any takers please? (and is there a template letter for IGNM suggestion in post 20?).

 

many thanks

[vint1954]

Hi all,

 

Update on the above - we have established via the good people here that they appear to have terminated without a valid DN. Latest correspondence attached from a DCA acting for them (?suggests not in fact terminated in their eyes?). Also no reply to my CCA request and they are out of time?? (well over 14 days now).

Yes, they have terminated on the back of a faulty DN. Did the CCA request go to halifax or DCA? The usual route is to send the CCA request, before the DN arrives.

 

I obviously will not be calling on the phone and up to now apart from the CCA request I have kept quiet but what's my next step? Do I answer the DCA? At this stage do not want to end up near a court (although once things on a more stable footing overall I would certainly be happy to go there with this lot and a number of others!)

Keep the faulty DN to yourself for the time. I would think that the next step is to send the account in dispute letter, although if they have terminated, the account is closed and they do not have to supply CCA under s78 ( no contract exists )

halifax are good at issuing DN's & TN's willy nilly, as if they mean nothing. How wrong they are.

Did the TN come before or after your CCA request?

 

If I was not dealing with so many creditors/DCAs at the same time I would probably not be asking so many questions as the info is here but my head is spinning a bit at the moment so thanks for bearing with me (and the good advice)

I would be inclined to forward the DCA a copy of the termination notice and suggest that he returns the dispute to Halifax.

 

How many others are you dealing with and do they have separate threads?

 

Please see comments above.

[mjc007.5]

Many thanks Vint,

 

This is one of the more "mainstream" debts that I did not keep up with initially whilst battling the various payday lending companies that I got myself tied up with (I have been something of a regular on the payday loans forum!). I have seen a number of these off or come to an amicable arrangement (will be less so if I end up in DMP which I have been on the cusp of doing for a while now! - 8 from 11 of these evil things sorted to date). You will see very foolish trying to keep the plates spinning and went deeper and deeper into the dark side until the lightbulb moment! As a result this one got the CCA request after the DN arrived , it went to Halifax and no response to date (It is a relatively new account - around 2 years old).

 

The termination notice came after the CCA request (on the back of the faulty DN). I have prior to the CCA also sent correspondence advising/requesting temporary forbearance and offering payment at reduced rate and ALL of this has been ignored (the only thing that it would appear did not was the stay away from my doorstep letter.... so far!) Do I send the TN and copies of all of the correspondence so far? The fundamental point remains for this (and all my army of creditors) that I do want and over time do have the means to repay them but a reduced rate (and only what is legitimate in law - it is being used to attempt to beat me over the head so holding them to the same standards is perfectly reasonable!).

 

In all I have around 17 creditors I am in varying degrees of trouble with and 10 have come to arrangements. I am still early on the journey to sort it out and I am already knackered and not sure I have the stamina for the long fight (I have the ability with the help of the folk here but it is an almost full time job!!). CCCS are good to go with a DMP and they (finally) came down on the side of including all the debts and adjusting accordingly depending on where I get to in any disputes with them (initially they were very cagey about the whole "dispute" thing!)

 

I am working my way through things and will be posting other threads as I go ....

 

Thank you again

[vint1954]

Hi MJC,

 

Send the letter below to Halifax.

 

Copy to the DCA with a copy of your TN.

 

I will post a covering letter for the DCA.

 

Vint

 

xxxxxxxxxx 2009.

Dear Sir or Madam,

Account no xxxxxxxxxxxxxxxxx

 

ACCOUNT IN DISPUTE

 

Re: my request under the Consumer Credit Act 1974

Further to my request under the above act, your attention is drawn to the fact that this account is subject to a serious dispute. On xxxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

 

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing ( 12 working days + 2 ) to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly as no agreement has been supplied on request, you have not complied with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in S.78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (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 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.

 

To clarify S.61(1) states

 

(1)A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

 

In addition the prescribed terms referred to in section 60 CCA1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and 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—

 

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.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

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced..

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as you become compliant with my request. As you are still not in compliance with my request I insist that the following takes place with immediate effect.

 

All entries which refer to missed payments be removed from my credit file

All collection activities cease with immediate effect until you comply with my request from xxxxxxxxxxxx or such time as a court makes an enforcement order.

In addition, 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 have enclosed an excerpt from 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

 

What I Require.

 

I require that you send me a true signed copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well

 

No other correspondence will be accepted

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful

 

I trust this out lines the situation

Yours faithfully