Halifax and Yorkshire Bank CCA's - Are they enforceable

[eggie]

hi all

 

Got a thread going on two CCA's Halifax and yorkshire Bank can anyone have a lokk and see if the yorkshire bank CCA enforceable as for Halifax just sent Terms and conditions with a letter,

 

Link to thread below

http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/206664-halifa-cca-recieved-but-3.html

 

Any help appreciated

 

Thanks

Eggie

[cerberusalert]

I've answered on your original thread but to reiterate; the Halifax are just T&Cs and by themselves unenforceable. The YB doesn't contain the prescribed terms so is also unenforceable.

[eggie]

I've answered on your original thread but to reiterate; the Halifax are just T&Cs and by themselves unenforceable. The YB doesn't contain the prescribed terms so is also unenforceable.

 

Hi Cerberusalert

 

Thanks for quick response and taking time to look at my CCA's. As for halifax the letter states that they are not going to correspond with me no more, they think i am using a claims company which i am not, and for Yorkshire bank CCA the top of CCA states the time and a company called Microform Ltd thus assuming the original agreement may not be at hand, lso the bottom where it says " please read carefully " is also illegible, so can the court enforce the CCA even though it's illegible at the bottom, i know it all depends on the judge and what mood he is in.

 

As i would like to settle this thing asap without getting in a lengthy letter battle, so would it be appropriate to let them know CCA is unenforceable and either settle out of court or settle in court, if they no then would it be a good idea to commence legal proceedings as soon as this, so is there a procedure to follow before commencing legal proceedings ?.

 

As for Halifax i am going to send this letter as see what they say.

 

Halifax Card Services,

Customer Services,

Pitreavie Buisiness Park,

Dunfermline,

KY99 4BS

 

Dear Sir/Madam

 

Re: Account Number XXXXXXXXX

 

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

 

Contents of previous letter noted I am not using any claims Company as stated. As I am actually corresponding on my own behalf and a little mistake on your behalf as not noting the correspondence was addressed by me.

 

I note that you have replied to the above by sending your companies old and 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 there under 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.

 

Also may I draw your attention to Francis Benion

 

Consumer Credit Act 1974 s 127(3)

“As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson

for his interesting and well-argued article (30 August 2003) on

 

Wilson v First County Trust Ltd [2003]

UKHL 40, [2003] 4 All ER 97.

Dr Lawson may be interested to know that I included the provision in question (section

127(3)) entirely on my own initiative. It seemed right to me that if the creditor company

couldn’t be bothered to ensure that all the prescribed particulars were accurately included in

the credit agreement it deserved to find it unenforceable, and that the court should not have

power to relieve it from this penalty. Nobody queried this, and it went through Parliament

without debate. I’m glad the House of Lords has now vindicated my reasoning and confirmed

that nobody’s human rights were infringed.”

167 Justice of the Peace (2003) 773.

 

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

 

If my request is not dealt with then I have no alternative to file under pursuant s33 Supreme Court Act 1981 and CPR 31.16 to request the required information in a Court of Law.

 

Yours faithfully

 

XXXXXX

 

Is the last sentence appropriate at this stage as most banks always say that they are not required to produce the CCA under CPR31.16 rule until they get papers served to them to attend court.

 

Thanks

Eggie