Halifax Credit Card - Enforceable?

[natalie]

Hi everyone, I received the following 2 documents from Halifax CC following a CCA request, can someone tell me if they are enforceable please.

CCA1edit.doc

CREDIT CARD AGREEMENT edit.doc

[cerberusalert]

If CCA1edit.doc are parts of the same document then it would be deemed enforceable, however why would they print the prescribed terms on the reverse of the agreement & only use a quarter of the available space?

[natalie]

Yeah the second page is the reverse of the first.

 

Something interesting though, the part I blacked out at the top is a date... which is 3 days before I signed it. Also, there is no mention of my credit limit anywhere, jsut "we will decide your credit limit and tell you what it is"

[babydoll0141917]

Hi

 

 

Unfortunately " we will determine your cred limit from time to time is a prescribed term...Most of us have these CCAs..T and C can be found on the reverse..but there must be a link to say that IE overleaf page numbers code numbers that match ..Anyone can copy and paste something on the reverse of something else!1 otherwise who is to say that what is on the reverse is some thing you signed for..I havent payed halifax in 17 mths ...not heard a word in 2 mths ..has gone through 4 DCAs..if they had any ace cards i think they would of used them by no ..I do have a invalid DN though

[natalie]

I dont think they were originally part of the same document, the t's and c's on the back are about a third of the page and you can tell its just been c'd and p'd.

 

The details I blanked out were my name and address, my dob, time at present address, marital status, homeowner, phone number, employment details and bank details. There isnt actually any information about the credit account, its all my personal info on the front. Then the back just seems to be very generic t's and c's.

[cerberusalert]

My suspicion is that it is not the reverse of the signed agreement. For example it refers to condition 8.2 (last paragraph), where is condition 8.2? It's certainly not on that page nor in the seperate T&Cs they provided.

[natalie]

So what do I do now? The CCA request was sent 18th June so they are well over the time limit.

[cerberusalert]

Call their bluff & send them this;

 

Dear Sir/Madam

 

Re:− Account/Reference

 

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

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

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

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

 

Since the agreement is unenforceable it would be in everyone’s interest to consider the matter closed and for you to write the alleged debt off. 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

 

 

Yours Faithfully

Print name do not sign

[natalie]

Excellent cheers, I dont need the telephone bit though, no creditors have my phone number, and I made one up when I applied for my experian file online

[natalie]

Something else I have just noticed in the covering letter... they defaulted me and as such the "agreement was ended on 2nd April 2009.... As the agreement has ended, there is no credit limit in place and no interest is being charged"

 

Am I right in thinking that if the default notice is flawed then they cant reissue one because the account is closed?

 

Because I file everything and have just found the default notice....

 

Lets see if you can spot the VERY obvious mistake... the Default notice is dated 2nd February 2009 everything else I will type exactly as it appears.

 

Dear Natalie

IMPORTANT - YOU SHOULD READ THIS CAREFULLY

This is a default notice served under Section 87(1) of the Consumer Credit Act 1974.

Clause 2.2 of your terms and conditions contains details of the minimum payment you must make each month. You are in breach of that clause as arrears of £xx.xx are outstanding.

You must pay £xx.xx into your credit card account number xxxxxxxxxxxxxxx before 21st January 2009.

IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ENFORCEMENT ACTION WILL BE TAKEN IN RESPECT OF THE BREACH.

IF YOU DO NOT TAKE THE ACTION REQUIRED BY THIS NOTICE BEFORE THE DATE SHOWN THEN THE FURTHER ACTION SET OUT BELOW MAY BE TAKEN AGAINST YOU.

We will terminate our agreement with you and close your credit card account xxxxxxxxxxxxxxxx. You must pay the full balance owing on your account immediately. If you do not do this, we may take legal proceedings against you and/or instruct a debt collection agency to recover any amount you owe us on your account.

If your account conditions allow, we may also transfer money from any other accounts you may have with us to reduce the debt outstanding.

You and any authorised user(s) must stop using your card(s) immediately. (I stopped using them in 2006) Your card(s) must be cut in two peices through the magnetic strip and returned to us at the address overleaf before 21st January 2009.

 

Then the usual bumff about cra's

[cerberusalert]

Yes the DN is defective because of the date and no once they terminate they cannot reissue a DN.

[natalie]

Does that mean that even if the CCA was enforceable, they have shot themselves in the foot with the DN anyway and cant take me to court?

 

Should I mention the faulty DN in my letter to them?

[cerberusalert]

Even if the CCA was enforceable because of the 'unlawful recission' of the contract on the back of the defective DN all they can legally claim are the arrears up to the date of the DN, the remaining balance would have to be written off.

 

Don't mention the defective DN to them, that is your 'Ace Card' at the moment.

[natalie]

Right much as I would love to rub their noses in it I will be patient

 

Ha, well they defaulted me on a 1k debt for being less than £60 in arrears

[natalie]

So after sending the letter suggested, I have just had a letter from Robber's Way.

 

FORMAL DEMAND FOR PAYMENT

HBOS have authorised us to recover the full amount you owe, shown above. This is a formal notice of intended court action. We may take action unless YOU PAY THE FULL AMOUNT YOU OWE WITHIN 10 DAYS OF THE DATE OF THIS LETTER.

If court action is taken and a court considers your failure to pay to be due to your refusal or neglect to pay, an order for repayment may be made. If you fail to pay in accordance with a court payment the following may occur.

A process of enforcement by court officers

An order for deductions from your earnings

An unpaid court order may make credit difficult to obtain

This problem account will not go away or be forgotten - it makes sense to pay now. Call now using your debit or credit card - or see the payment instructions overleaf. Payment MUST be paid now to Robbers Way, NOT HBOS.

Obviously the account is in dispute so they shouldnt have been passed the account, but I want them to start proceedings because I have a faulty DN and the account has been terminated. So do I send Robbers way the bemused letter, or do I just ignore it?

 

[natalie]

oh and

 

"Payment MUST be paid now to Robbers Way, NOT HBOS."

I thought Robbers way were inhouse for HBOS, so why does it matter who I pay? (If I was going to, which I'm not obviously)

[playahata]

Hi Natalie

 

When did you take out your card with Halifax?

I have had a halifax CC since 2006, which they changed from Visa to Mastercard some time last year without getting me to sign a CCA.

I'm just a little cautious as I am on a DMP and if this goes t*** up they may start charging full interest again, which I can no way afford.

[natalie]

I took mine out around 2003. You will find that after 6 months of being on a DMP they will start charging interest again anyway.

[babydoll0141917]

Hi ..Robbers way are a company on there own,,Blair oliver and scott are halifaxs indoor Collecters ..Send robbers way the bemused letter..They shudnt pass accounts on when in dispute ..but that doesnt stop them ..My cca is the same as ures ..I saw robbers way of with the bemused letter...nothing from halifax or any other DCA for 2 mths or so now

[natalie]

Thanks, will do!

 

I've SAR'd Halifax now, and once I add up the charges I might write to them telling them that I'm going to sue them for charges and libel (invalid default on my file) but that I will compromise and settle for account to be written off and completely removed from my credit file.