SJP37/Halifax BOS

[SJP37]

Hi All,

 

Quick bit of background,

 

sent off CCA letters to Halifax (2 Halifax Cards and 1 RBS Card) and surprise surprise got blank t&c's.

 

Was subsequently recommended a Debt Management Company by a 'friend of a friend' to take over the handling.

 

I signed up with them and they sent me pretty much the same letters that I got off this forum for me to send to Halifax.

 

I explained that I had already done this but they said I had to use their versions. So I did, and once again Halifax only supplied blank t&c's.

 

Now that I have requested this information twice,

is my next course of action a Subject Access Request?

 

Also can someone explain at what point do I stop my payments if the accounts seem to be 'in dispute'?

 

Look forward to your advices.

[clemma]

You can stop your payments now - have you sent the "in dispute" letter to them??

[SJP37]

Hi Clemma, no I haven't sent a "dispute" letter. If I send this, do I still need to send an SAR letter or does this "dispute" letter take care of it? And I take it there's a template on here?

 

Anyway, as I've just paid this months instalments I will stop paying from next month!

 

Many thanks,

[clemma]

I would just send them the following - no point wasting £10 just yet.

 

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 your companies 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

 

Yours faithfully

__________________

 

Definitely stop paying - it's your right to withhold payments until they comply.

[SJP37]

Thanks once again Clemma, will send off letters recorded delivery first thing tomorrow.

 

Will keep my progress updated on the forum.

[SJP37]

Hi All,

 

I have 2 credit card accounts with Halifax and 1 with BoS of which I have CCA'd them with the usual response of blank t&c's. I then sent dispute letters and received the following:-

 

Halifax

 

Sent the attached letter which included the sentence "For the avoidance of doubt, the Consumer Credit Act 1974 does not prohibit collection activity when an account is in dispute." Is this true?

Halifax response to dispute letter.pdf

 

Bank of Scotland

Sent me a copy of an application form which bears my signature. How do I stand on this, as I don't remember signing it and I haven't dated it although they have a dated 'Received" stamp?

Bank of Scotland Application Form.pdf

 

Look forward to hearing from someone more experienced on what to do next.

 

Thanks,

[shakespeare62]

The bank of Scotland application form, is missing the prescribed terms for a credit card, i.e. Credit Limit, Interest rate, repayment dates. therefore it would be unenforceable in Court by virtue of s127(3) of the Consumer Credit Act 1974, providing the agreement was taken out before April 2007 - the agreement looks old.

 

Can you post the copy agreement that Halifax sent you ? (Remove your ID first ..u know name, address, account no etc.).

 

If they have not sent you a copy of your original agreement then there is a letter here you can adapt. You need to see the original document copy with your signature on it. Here's the letter :-

Template_CPR_Pre_Action_request.doc

[shakespeare62]

If you a writing directly to the original creditor, then delete "I do not recognize your authority" .

 

Did you take out any PPI with the Halifax agreement ? If so it may have been mis-sold.

 

Do you have a copy of the Default Notice ?

 

Do you have copies of all the Bank statements ? The account is likely to contain unfair charges of £15 and above.

 

To obtain copies of the Default Notice and Copy statements you would need to send the creditor a Subject Access Request (SAR), made under the Data Protection Act 1998. This requires a £10 fee.

[shakespeare62]

To answer your question on collection whilst an account is in dispute.

 

If it's only the right to enforce that's in dispute (e.g. an agreement does not contain prescribed terms), then I believe a creditor can still 'ask' you to pay, simply they would not be able to enforce payment in Court. If they harass you,(incessant phone calls etc.) then you can stop them doing this. (Template letters are around) and request all communication to be in writing only.

 

If an amount is in dispute, e.g. unfair charges under the UTCCR 1999, or mis-sold PPI etc. or a payment is disputed, then under OFT Debt Collection guidelines (OFT 664), they should cease all collection activity until the dispute has been resolved.

Edited August 26, 2009 by shakespeare62

[shakespeare62]

Any questions ..just ask.

[SJP37]

The bank of Scotland application form, is missing the prescribed terms for a credit card, i.e. Credit Limit, Interest rate, repayment dates. therefore it would be unenforceable in Court by virtue of s127(3) of the Consumer Credit Act 1974, providing the agreement was taken out before April 2007 - the agreement looks old.

 

Can you post the copy agreement that Halifax sent you ? (Remove your ID first ..u know name, address, account no etc.).

 

If they have not sent you a copy of your original agreement then there is a letter here you can adapt. You need to see the original document copy with your signature on it. Here's the letter :-

 

Shakespear62, many thanks for your posts, I will respond to each of them in turn if that's ok.

 

Have attached the T&C's I receieved for both the Halifax and BoS accounts.

 

Halifax T&C's.pdf

 

Bank of Scotland T&C's.pdf

 

Regarding the letter template, I guess I fire this off pronto?

[SJP37]

If you a writing directly to the original creditor, then delete "I do not recognize your authority" .

 

Did you take out any PPI with the Halifax agreement ? If so it may have been mis-sold.

 

Do you have a copy of the Default Notice ?

 

Do you have copies of all the Bank statements ? The account is likely to contain unfair charges of £15 and above.

 

To obtain copies of the Default Notice and Copy statements you would need to send the creditor a Subject Access Request (SAR), made under the Data Protection Act 1998. This requires a £10 fee.

 

 

Yes I am writing to the original creditors, not been passed on to any DCA's...yet!

 

No PPI taken out so can't go down that road.

 

No Default Notice yet, just some 'gentle' reminders on my last statements!

 

At this stage do you think I need to proceed with a SAR?

[SJP37]

To answer your question on collection whilst an account is in dispute.

 

If it's only the right to enforce that's in dispute (e.g. an agreement does not contain prescribed terms), then I believe a creditor can still 'ask' you to pay, simply they would not be able to enforce payment in Court. If they harass you,(incessant phone calls etc.) then you can stop them doing this. (Template letters are around) and request all communication to be in writing only.

 

If an amount is in dispute, e.g. unfair charges under the UTCCR 1999, or mis-sold PPI etc. or a payment is disputed, then under OFT Debt Collection guidelines (OFT 664), they should cease all collection activity until the dispute has been resolved.

 

Well I'm not disputing the amount, it's the enforcability, but I'm sure I've seen on here somewhere that if I'm disputing its credability then making payments contradicts the argument.

 

As for harassing phonecalls, have started getting the hourly automated one's from Halifax. I will try and find a letter on here to send them.

[babydoll0141917]

subbing

[shakespeare62]

Regarding the letter template, I guess I fire this off pronto?

 

I'd send the SAR, requesting a copy of the signed (i.e. executed agreement instead). This is because your Halifax agreement is still active. You need to see a copy of the original executed agreement.

 

I've attached a sample letter for BOS here :-

 

Send both letters by recorded delivery if poss. Failing that, obtain a Certificate of posting (free receipt from the Post Office when you hand in a letter)

UNENFORCEABLE_AGREEMENT_LETTER.doc

Edited August 26, 2009 by shakespeare62

[shakespeare62]

Well I'm not disputing the amount, it's the enforcability, but I'm sure I've seen on here somewhere that if I'm disputing its credability then making payments contradicts the argument.

Correct - see the last para of the suggested letter to Bank of Scotland

 

As for harassing phonecalls, have started getting the hourly automated one's from Halifax. I will try and find a letter on here to send them.

 

Here's an example harrassment notice :-

Harrassment Notice Example - phone calls.doc

[shakespeare62]

At this stage do you think I need to proceed with a SAR?

 

Depends, I would be inclined to seek for as much information as possible, including a copy of the agreement and all charges made on the account. However, your as I understand it your credit card agreement has not been Defaulted or Terminated yet.

 

Usually people fall behind in payments on an agreement because they get into financial difficulties and cannot maintain them. At that point the creditor will usually Default and Terminate the agreement, before commencing Debt Collection action.

 

Until you are sure about whether the Halifax agreement is enforceable or not, if you can maintain payments it might be a good idea.

[SJP37]

I'd send the SAR, requesting a copy of the signed (i.e. executed agreement instead). This is because your Halifax agreement is still active. You need to see a copy of the original executed agreement.

 

I've attached a sample letter for BOS here :-

 

Send both letters by recorded delivery if poss. Failing that, obtain a Certificate of posting (free receipt from the Post Office when you hand in a letter)

 

Will do right away, and will keep you and everyone posted of the outcome.

[SJP37]

Here's an example harrassment notice :-

 

This will be sent off as well.

[shakespeare62]

Here's a link to a good example SAR

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/152932-alphageek-sainsburys-cc.html#post1908783

 

In summary, I'd hold fire on the CPR pre-action request letter to Halifax, because they haven't threatened you with legal action yet, send the SAR to them instead.

 

To BoS, I'd send the letter informing them the agreement is unenforceable and you are not obliged to pay them anything.

Edited August 26, 2009 by shakespeare62

[shakespeare62]

You could send the CPR pre-action request letter, later on, if you get defaulted and threatened with legal action.....

[SJP37]

Depends, I would be inclined to seek for as much information as possible, including a copy of the agreement and all charges made on the account. However, your as I understand it your credit card agreement has not been Defaulted or Terminated yet.

 

Usually people fall behind in payments on an agreement because they get into financial difficulties and cannot maintain them. At that point the creditor will usually Default and Terminate the agreement, before commencing Debt Collection action.

 

Until you are sure about whether the Halifax agreement is enforceable or not, if you can maintain payments it might be a good idea.

 

Well, I'm getting to the point where I don't think I can maintain the payments, and if there is a question mark over the CCA, then is this not the road that I should go down, just to keep the wolves from the door?

[shakespeare62]

You will need to send the SAR by Special Delivery (in case they deny receipt) , and enclose a postal order for £10 made payable to HBOS.

 

Useful CAG templates can be found here :-

http://www.consumerforums.com/resources/templates-library/48-bank-templates.html

[SJP37]

Here's a link to a good example SAR

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/152932-alphageek-sainsburys-cc.html#post1908783

 

In summary, I'd hold fire on the CPR pre-action request letter to Halifax, because they haven't threatened you with legal action yet, send the SAR to them instead.

 

To HBOS, I'd send the letter informing them the agreement is unenforceable and you are not obliged to pay them anything.

 

Re Halifax, I agree, that seems to make sense to me as well now you say it.

 

The same goes for HBOS, will send that one out.

[shakespeare62]

Keep us posted...