Halifax Credit Card CCA Request Reply

[Cobra29]

I would very much appreciate your opinions and comments on the reply I have recieved from Halifax Card Services below which I have recieved in response to my request for a copy of my original credit agreement.

 

Reply - " I have enclossed with this letter a copy of your reconstituted version of the executed agreement, a copy of your current terms and conditions and a signed statement of your account.

 

The copy of the agreement enclossed complies with the requirements of the Consumer Credit ( Cancellation Notices and Copies of Documents ) Regulation 1983. Regulation 3(2)b provides that a copy can omit a signiture box, signiture or date of signiture. In summary we are not required to produce a copy with your signiture on it. By providing a copy of the agreement complying with the requirements of the Regulations the agreement remains enforceable."

 

They go on to say that they have satisfied their obligations and will not enter in to any further correspondenxe reagrding this matter/

 

What do you think? What should I do next?

 

Thanks

[PGH7447]

when was the credit card taken out?

[Cobra29]

Hi. I can't remember exactly when, but it was probably about 8 years ago

[PGH7447]

so did they supply you at anytime with a copy

 

EXPLANATORY NOTE

 

 

(This note is not part of the Regulations)

• These Regulations amend the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 by providing that further copies of a document referred to in an executed or unexecuted agreement secured or to be secured on land need not be provided in a case where the debtor or hirer has already been supplied with a copy of that document in an identical form.
  

if not then they have not fulfilled their obligation

[PGH7447]

Dear Sirs,

 

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 a copy of 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

[Cobra29]

Hi Thanks for that but I don't understand your first reply. I may well have had a copy of the original terms and conditions when i took the card out but have never had anything about;

 

These Regulations amend the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 by providing that further copies of a document referred to in an executed or unexecuted agreement secured or to be secured on land need not be provided in a case where the debtor or hirer has already been supplied with a copy of that document in an identical form.

 

So should I send your suggested letter?

 

Thanks for your help

[PGH7447]

that is the explanation of the regulations they are quoting so yes send the letter

[Cobra29]

Thanks. I'll give it a go and see what happens.

[vint1954]

Thanks. I'll give it a go and see what happens.

And not forgetting:

 

From the OFT

 

“The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement eg the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan.

 

Should no original agreement be in existence it is very hard to say that the copy the creditor offers to the debtor is, in fact, a true copy as there would be no original with which to compare it. In our view the onus of proof would be on the creditor to show that the copy is a true one and where none existed he may have difficulty discharging this. Neither should creditors suggest that a consumer has signed a credit agreement where they are unable to provide evidence to support this — to do so is likely to be a misleading action under Regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) and would also constitute an unfair or improper business practice.”

 

 

The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, that you are selectively citing, are sections 3(1) and 3(2). These sections are very clear on what may be left out of a copy document, and by default, what must be included. Regulation 3(1) requires that, subject to certain limited exceptions, any copy of an unexecuted agreement must be a ‘true copy’. This means that it must be identical to the agreement as presented or sent to the debtor for signature.

[tiger1506]

hi - i have been following various threads, which have been useful, regarding the situation with the issues regarding unenforceable agreements. it seems that a number of these providers are unable to produce the agreements and reproduce computer generated T&C which bear no resemblence to the T&C signed years ago

 

my halifax card was taken out 2003 and i have asked for a copy of the agreement - i have not yet challenged the charges against the card - does anyone recommend this??????

 

At the moment i am in receipt of a letter from the halifax confirming that they have presviously sent 'reconstructed versions of the executed agreements which comprised of the original and current t&c's. They feel that these were suitable asregulation 3 (2) (b) provides that a copy can omit any signature box, signature or date of signature.

 

they have confrimed that they are not able to provide a copy of the original signed agreement however can confrim that their procedure was always to obtain a copy of the customers signature to an agreement containing the prescribed T&C's before entering into a credit agreemnt and as such they feel that they are confident that the agreement remains enforceable.

 

furthermore they have also advised that the contract still has legal effect and is not void but they are merely prevented from seeking enforcement oredr from courts. they have advised that should this matter go to court then they will adduce evidence confirming their procedures.

 

they also state that because i have not previously disputed the account since2002 and that previously have made payments to the account they feel that i have no basis for the dispute.

 

they hope that the above information clarified the position.

 

in addition today i am in receipt of a letter from blair scott threatening legal action. I have kepted them copied in on all correspondence to Halifax but it would appear they they are taking the same stance as halifax and continuing with ingoring the fact they are unable to produce the correct information.

 

i am not too sure as to what other letter i should now be producing to stop or stall them in their tracks:x. in addition i have also requested all comms to be made in writing but to date this has bene ingored as i have received phone message from blair scott and calls from BOS/halifax so again any ideas regarding stopping this barrage would be gratefully received. i am pretty new to this so if i have joined the wrong thread to could you direct me as i posted something the other day and it was moved to tiger1506 v halifax but received limited responses at time of writing

 

thanks again for any help

[PGH7447]

for the phone calls

 

Harassment by telephone

 

Account Number: XXXXXXX

I am writing in relation to the quantity and frequency of telephone calls that I have received from your company, which I deem to be personally harassing.

I have verbally requested that these stop, but I am still receiving calls. (Delete if necessary)

I now require all further correspondence from your company to be made in writing only.

I am of the view that your continued harassment of me by telephone puts you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

If you continue to harass me by telephone, you will also be in breach of the Communications Act (2003) s.127 and I will report you to OFCOM, Trading Standards and The Office of Fair Trading, meaning that you will be liable to a substantial fine.

Be advised that any further telephone calls from your company will be recorded. (**Even if you don‘t yet have recording equipment!!**)

 

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Also if they have admitted as such that no signed agreement exists then I would for now wait their next move, they are trying to bluff you with legalease. if they are confident that if it went to court they could produce evidence to support them then they should have provided it in response to your cca/sar request

[Cobra29]

Hi PGH7447

 

I have sent the letter you suggested in post 5. Should I continue to make payments to Halifax? I can no longer afford the full amount so should I pay an amount I can afford, should I try and agree a payment plan with them or should I stop making any payments for the moment?

 

Your advice would be much appreciated.

[PGH7447]

if it is after the 12+2 days then you can either stop payments or make a token payment, it is entirley down to you, but by making a token payment you are admitting the debt, but also showing willing if this ever gets near a court.