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Can someone have a look at this letter please for yorkshire bank


eggie
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Hi all

 

Can someone have a look at this amended letter please for yorkshire bank CCA as they only sent a app form and separate term and conditions the card late 1998.

 

Halifax Card Services,

Customer Services,

Pitreavie Buisiness Park,

Dunfermline,

KY99 4BS

 

Dear Ann Gartshore

 

Re: Account Number XXXXXXXXXXX

ACCOUNT IN DISPUTE

 

I have received the documents you sent and in the accompanying letter you have confirmed this to be a true copy of the credit agreement that exists in relation to this account. As you have sent this document in response to a formal request under Section 78 (1) of the Consumer Credit Act 1974, this statement is now binding on you as per section 172 of the Act.

 

I must inform you that the information received does not meet the requirements of a properly executed credit agreement under the 1974 Act. The document received does not contain any of the prescribed terms as set out in the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) Schedule 6 Column 2.

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974

 

The absence of a properly executed credit agreement prevents you from:

Adding interest to the Account.

Taking any enforcement action on the Account.

Passing the debt on to a Debt Collection Agency.

Issuing any default notices or registering any default marker with a Credit Reference Agency.

This situation 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.

 

Wilson v First County Trust Ltd [2001] EWCA Civ 633, Sir Andrew Morritt, Vice Chancellor said:

The creditor must…be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid

]

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.

In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said:

(b) Improperly executed.

 

Although it is conceded that the agreement was not properly executed, I think I should briefly explain why.

By section 61(1), a regulated agreement is not properly executed unless, among other things:

 

"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."

 

Section 60(1) gives the Secretary of State power to make "regulations as to the form and content of documents embodying regulated agreements" to ensure that the debtor or hirer is made aware of, among other things, "the amount and rate of the total charge for credit (in the case of a consumer credit agreement." By the Consumer Credit (Agreements) Regulations 1983 (S.I. 1983 No. 1553), the Secretary of State prescribed the form and contents of regulated consumer credit agreements.

Schedule 6 : provided that certain terms were to be "prescribed terms" which the document had to contain for the purposes of section 61(1). These were, in the case of a consumer credit agreement..., "a term stating the amount of the credit, which may be expressed as the total cash price of the . . . services." It is conceded that no such term appeared in the agreement signed by Mrs. Dimond. The agreement was therefore improperly executed.

Section 65(1) provides that an improperly executed agreement shall be enforceable only "on an order of the court." Section 127 gives the court power to make orders for the enforcement of agreements that are, for various reasons, improperly executed. But subsection (3) provides that a court shall not make an enforcement order for an agreement that does not comply with section 61(1)(a) unless the debtor signed a document containing " all the prescribed terms.

Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.

]

I would also point out that if you continue to pursue me for this debt while it is dispute you will be in breach of the OFT guidelines.

What I Require

I require all correspondence in writing from here on; any persistent attempts to contact me by phone will be reported to trading standards

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case.

]

Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40.

 

I quote the act for your information:

 

Administration of Justice Act 1970

 

Part V

Miscellaneous Provisions

Section 40 of the Administration of Justice Act makes it a Criminal offence for debt collectors to make demands for debt payment frequently or “subject him or members of his family or household to alarm, distress or humiliation”. The debt collector cannot falsely lead you to believe that criminal proceedings will start if you fail to pay it, provide false court documents or pretend that they are bailiffs.

Here is section 40 of the Administration of Justice Act in full:

1. A person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under a contract he-

 

  • harasses the other with demands for payment which, in respect of their frequency, or the manner or occasion of making any such demand, or of any threat or publicity by which any demand is accompanied, are calculated to subject him or members of his family or household to alarm, distress or humiliation;
  • falsely represents, in relation to the money claimed, that criminal proceedings lie for failure to pay it;
  • falsely represents himself to be authorised in some official capacity to claim or enforce payment; or
  • utters a document falsely represented by him to have some official character, or purporting to have some official character which he know it has not.

2. A person may be guilty of an offence by virtue of sub-section (1) (a) above if he concerts with others in the taking of such actions as is described in that paragraph, notwithstanding that his own course of conduct does not by itself amount to harassment."

 

Since the agreement is unenforceable it would be in everyone’s interestto consider the matter closed and for you to write the alleged debt off. The debt must be full and final also credited as “Satisfied”

 

I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages as you can see I am well conversed with the Consumer Credit Act 1974.

 

Your Sincerely

 

Thanks

Eggie

 

Not much activity in YB thread so decided to post here. Will this letter also suffice for Halifax as they only the usual terms and conditions out with a printed agreement or does it need amending. If so can someone amend and post please.

 

Thanks again.

Edited by eggie
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That seems fine to me :)

:)I am not an expert, but I can give good advice about Brighthouse:)

 

Am learning more and more about DCA's too :)

 

I have no legal experience and all advice given is based on the knowledge I've gained from this site.

 

<------If you think I have been helpful, please feel free to tip my scales - remember to put your CAG name though!

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That seems fine to me :)

 

Hi Clemma

 

Will it do for both Yorkshire Bank and Halifax Bank or would amendments be needed for Halifax as they never sent any sort of signed CCA out just their usual stuff.

 

thanks

Eggie

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Is this for a credit card or loan by the way?

 

If Halifax have sent nothing, then just send them the following:

 

Dear Sir/Madam

 

I DO NOT ACKNOWLEDGE ANY DEBT

 

ACCOUNT IN DISPUTE

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

 

You have failed to comply with my request, and as such the account is now in default as of **DATE**.(12+2 days after you sent the CCA request)

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore;

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation. This limit has expired

 

As you are no doubt aware section 78(6) states:

 

If the creditor fails to comply with Subsection (1)(a) He is not entitled , while the default continues, to enforce the agreement.Therefore this account has become unenforceable at law.

 

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested. Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS. Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends. Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute.

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit. You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint. I therefore request a copy of your official complaints procedure which you are obliged to supply.

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

 

 

Yours faithfully,

:)I am not an expert, but I can give good advice about Brighthouse:)

 

Am learning more and more about DCA's too :)

 

I have no legal experience and all advice given is based on the knowledge I've gained from this site.

 

<------If you think I have been helpful, please feel free to tip my scales - remember to put your CAG name though!

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Hi

 

thanks clemma for your input gladly appreciated also would like to thank CitiB for his input and help on this matter .

 

Keep u posted as what happens.

 

thanks

Eggie

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