Is my halifax credit agreement challengable

[no_mercy]

hi all

 

quick background

 

sent of c/a request on the 25 aug, recieve a copy of there cancellation rights and procedure. sent back a letter of dispute. halifax then sold the debt to many other debt agenices which ive defended each one and today i finally recieved a copy of my credit agreement.

 

have a look and tell me what you guys think?

 

my credit agreement from halifax

"http://i1004.photobucket.com/albums/...1/scan0001.jpg"

 

please look at the second box about the payment protection. the credit agreement is a bad photocopy but ive read through it and found nothing about the credit card protection.

 

also heres a brief layout and what the c/a says.

 

i will put down the key information and see if anyone thinks its challengeable

 

1 parties :halifax plc

2 key financial information

2.1 we will decide your credit limit and tell you what it is. we may change it at any time and we will let you know about any changes.

2.2 we must send you a monthly statement

2.3 the apr for the agreement is 15.9 variable

3 other financial information

3.1 the total charge for credit is 123.32,consisting of 123.32 interest. this is based on credit borrowed at the sum of the agreement over one year at the standard interest rate for purchases set out in condition 3.2 below

3.2 a table of interest rates for different purchases and balanaces

3.3 calulated interest on my average daily balance

3.4 about not charging interest on certain things

3.5 interest on if i dont pay the total balance.

3.6 we use all payments you make off your balance in the following order.

4 key information

4.1 we will charge

4.2 we will charge handling fees, missing payments, important information about my rights. theft,loss or misuse of credit card

my rights to cancel

signture box with my signature but no date

under that a credit card repayment cover box with a tick and a signature from me

under that a signature from halfiax with date

2nd page with my application details with my details on it.

 

to summarise ive looked through the credit agreeement and found nothing about the details of the payment protection part. it seems that the credit card part of the agreement is fine but no mention of the credit card payment details.

 

could someone please advise if they had dealing in this matter?

 

please advise no_mercy

Edited December 4, 2009 by no_mercy

[vjohn82]

It looks fine if that is the information that appears...

 

BUT

 

The document must be easily legible though

[no_mercy]

could you please explain?

[vjohn82]

When looking at the agreement it looks as though the prescribed terms are there in the right form.

 

The signature is there.

 

The document is headed with the correct terms.

 

BUT as I said the document is not easily legible.

 

Section 2(1) of the Consumer Credit (Cancellation notices and Copies of Documents) Regulations 1983 states quite specifically.....

.2 Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the

[no_mercy]

ok thanks vjohn 82

 

i get what your saying now. the copy ive got is a bit more readable, but there are some sections that are not readable. would this be enough to deem it challengable.

 

if so do you have a template i could use?

[vjohn82]

I will have a look around the site to see but generally you write a letter quoting the statement I posted. Basically ask them if they have anything more legible than that.

 

Better to get them on the hop with it... if they then write a threatening letter after you question the legibility of it... then you know the reaction of the company. If they state they do not... then you have it confirmed in writing. If they send you a better copy then you know what to post up next

[no_mercy]

ok just to sum up, to test the water to see there reaction and if there is not a better copy of the agreement then i could have a case to challenge them on the grounds listed above. but im i only buying time here or have you seen or heard or had a similar case of you own? also is the legible of the contract looking at it a bit weak to build a case on. i dont know i`m only asking because its the first time ive come across this argument?

[vjohn82]

Ok... it's not a perfect argument by any stretch.

 

You say that you've defended each debt collection agency thus far... in what sense? Do you mean in court?

[no_mercy]

whats happened this account has been passed from debt agency to debt agency. in which ive responded to each one with a letter of dispute, which they have responded with a letter to say they have return the account back to halifax and also some have said they will close the acount till the information comes avaiable, but this agreement was sent by moorcroft a new dca dealing with the account with a statement saying that will put the account on hold for 14 days waiting a response.

[lilly white]

please explain about the ppi

[lilly white]

A decision by a county court judge could mean thousands of borrowers being able to renege on their debts.

Judge Jacqueline Smart at South Shields county court has decided that the MBNA credit card company cannot demand the repayment of a customer's debt.

It tried to force Mrs Lynne Thorius to repay the £8,000 she owed on her card.

But the Judge decided there had been an unfair relationship between Mrs Thorius and MBNA because of the way she had been sold payment protection insurance.

'Massive ramifications'

Mrs Thorius's case was pursued on her behalf by a claims management firm Cartel Client Review, based in Manchester, and the law firm Consumer Credit Litigation Solicitors.

Carl Wright of Cartel Client Review said the court decision was a landmark judgement.

"This will have massive ramifications for consumers up and down the country," he said.

But MBNA downplayed the importance of the court decision.

"The judgement went against MBNA for a number of reasons," a spokeswoman said.

"In principle, because the deputy district judge felt that MBNA had not on this occasion provided the appropriate documents to the customer and as such was not able to rely on the clauses MBNA would ordinarily seek to rely on in these cases," she explained.

"The case is a county court case and each case is decided on its own merits and on the factual circumstances of each case. This does not set any legal precedent," said MBNA.

'Secret commission'

The credit card in question was branded with the logo of Sunderland football club and was sold to Mrs Thorius in the club's shop in 2002.

 

 

The PPI policy was strongly recommended by MBNA to her at the same time, to pay off her account if she fell ill or was made redundant.

But, critically, she had not been told that MBNA would be receiving regular commission payments from the insurance provider ITT London & Edinburgh, a subsidiary of the Aviva insurance group.

Judge Smart agreed with the argument of Mrs Thorius's barrister, Paul Brant, that this "secret" commission meant the credit card deal was unfair and therefore in breach of the Consumer Credit Act.

This point could potentially undermine many other agreements where PPI has been sold by the lender alongside a loan.

These include car finance deals, other personal loans and even mortgages.

"This practice is believed to be widespread and formed part of the Competition Commission's decision to prohibit the co-sale of PPI with credit in its report published on 29/1/09," her solicitors noted.

"This point is likely to affect many thousands of individuals within England and Wales," they added.

Repayments

The main ground on which Judge Smart said Mrs Thorius's credit card debt was unrecoverable was because MBNA could not provide a copy of the original signed loan agreement, which is also a requirement by the Consumer Credit Act.

The Judge ordered the company either to repay Mrs Thorius's PPI premiums and interest, or the value of the commissions it had received which so far has been undisclosed.

The PPI premiums, which rose each month as the credit card debts increased, amounted to £2,500 over the time the card had been in use.

[no_mercy]

it only says in the second box that i have ticked and signed for a credit card protection plan. but no where on the agreement is there any mention of the amount they are going to take and at what rate. it only says if i`m correct is this

i understand i am purchasing the product ticked above the credit provided by you that the terms relating to the cedit for the products can be found on conditions 1 to 4 in the agreement.

 

but it only talks about the credit card not the card protection?

[vjohn82]

whats happened this account has been passed from debt agency to debt agency. in which ive responded to each one with a letter of dispute, which they have responded with a letter to say they have return the account back to halifax and also some have said they will close the acount till the information comes avaiable, but this agreement was sent by moorcroft a new dca dealing with the account with a statement saying that will put the account on hold for 14 days waiting a response.

 

Hmmm... I would wait until you receive a court claim form to be honest. You can challenge the right of the claimant to chase the debt then. All of this disputing the account just keeps resetting the statute barred clock.

 

Wait until they take court action... defend using s.196 of the Law of Property Act 1925.

 

please explain about the ppi

 

Yes I'm intrigued too... what's the issue with the PPI?

[lilly white]

So Sar To Halifax And Also You Need To Get The Full Insurances Cert.

 

Sleep Well

 

Regards Lilly

[vjohn82]

The main ground on which Judge Smart said Mrs Thorius's credit card debt was unrecoverable was because MBNA could not provide a copy of the original signed loan agreement, which is also a requirement by the Consumer Credit Act.

 

The Judge ordered the company either to repay Mrs Thorius's PPI premiums and interest, or the value of the commissions it had received which so far has been undisclosed.

 

The PPI premiums, which rose each month as the credit card debts increased, amounted to £2,500 over the time the card had been in use.

 

They have provided a CCA... so the only route you can go on is the PPI IMHO.

 

You need the original lender to disclose whether they were paid commissions, or find from another area of the site if there is a history of this by the creditor.

[lilly white]

vj are you well.

 

ok this is what it is about have a read

 

Multiple agreements within section 18 Consumer Credit Act 1974

 

This is just my view and interpretation of s18 CCA and therefore I would advise anyone reading this bear that in mind

 

Section 18 can be very useful concerning agreements where there is a main loan and payment protection insurance.

 

Firstly lets look at what section 18 says

 

18.Multiple agreements.

 

—(1) This section applies to an agreement (a “multiple agreement ”) if its terms are such as—

 

(a)To place a part of it within one category of agreement mentioned in this Act, and another part of it within a different category of agreement so mentioned, or within a category of agreement not so mentioned, or

 

(b)To place it, or a part of it, within two or more categories of agreement so mentioned.

 

(2) Where a part of an agreement falls within subsection (1), that part shall be treated for the purposes of this Act as a separate agreement.

 

Ok so what does this mean, well, lets say you borrow £6000 from Nasty Banking Corp, the loan is for you to use as you like and therefore you would have fixed sum credit See s10 (1)(B) CCA, unrestricted use credit See s11 (2) CCA and finally it would be a debtor-creditor agreement as defined within s13 CCA

 

Now if you add PPI to the loan, this changes things slightly, why? Well in my view if you borrow £6000 from Nasty Banking Corp and then you add a PPI policy for example adding another £1500 of credit you are turning it into a multiple agreement

 

The PPI is fixed sum credit as set out in section 10 CCA but it is not unrestricted use, instead its restricted use credit ( See s11 CCA) as you do not have any say over its use, it is in effect only credit for the purchase of the PPI policy and additionally it is a debtor-creditor-supplier agreement as it would be undoubtedly underwritten by another specialist insurer and not the creditor and therefore it falls within the definition given in section 12 CCA

 

So in effect what we have with the £6000 loan and the £1500 PPI is a multiple agreement with “part of it within one category of agreement mentioned in this Act, and another part of it within a different category of agreement so mentioned, or within a category of agreement not so mentioned”

 

This is because the £6000 is fixed sum, unrestricted use debtor creditor and the £1500 is fixed sum, restricted use Debtor-creditor-supplier

 

Therefore since this type of agreement falls within s18, it means that as defined in s18 (2) CCA that the document is to be treated as 2 separate agreements and each agreement must have its own prescribed terms for each part

 

Therefore each piece of credit must have its own term stating the amount of credit, repayments and all other statutory info, in addition the PPI policy would need to have a term stating the Cash Price of the policy, due to it being a restricted use debtor creditor supplier agreement.

 

In essence there should be the following

 

Loan

 

Amount of Credit £6000

Repayments 60 payments of £XXXXXX

Total amount payable £XXXXXXXX

 

APR 16.9%

 

 

 

PPI

 

Amount of credit £1500

Repayments 60 payments of £XXXXXXX

Total amount payable £ XXXXXXXXX

 

Apr 16.9%

 

Cash price of policy £1500

 

 

the agreement may not be set out exactly as above but that is to give you an idea of what it must contain

 

 

If the agreement fails to correctly set matters out in accordance with s18 then the lender risks falling foul of the form and content requirements of section 60 CCA and could be improperly executed as set out within section 61(1) (a) CCA 1974 thus becoming unenforceable

 

the main thing to remember is that you have two agreement within one document, so there must be a set of prescribed terms for each piece of credit, it is permissible to add the prescribed terms together and then state them as total amounts BUT they must be also stated in their separate parts.

[no_mercy]

thanks guys for all you help. it seems like ive got long hog in store for me

[vjohn82]

vj are you well.

 

Fine and dandy thanks... for a change lol.

 

I've sent you a PM... got a document I would like you to take a look over.

[no_mercy]

so guys from what ive read from the above section about multiple agreements. the two boxes above listed in the agreement one being the signing of the credit card and the other being the signing of the card protection. then the statement listed in the card protection section that the terms are included in the sections 1 to 4 which also includes the credit card should have it own terms and conditions away from the credit card. would this seem right and need to have it own terms and conditions seperate away from the credit card?

[lilly white]

yes.

 

so you need to see it, if they do not have one well they are in the........

 

sar halifax ask for it

[diddydicky]

if it gets to court- and given that it has changed hands many times- i would say your best bet it to use cpr to get details of EVERY sale of the debt to see if there is a flaw in the chain- if there is then the current "owner" would not have legal title to the debt

 

the cca is in contravention of the cca (not easily legible)- but apart from that if they produce a half decent original in court it looks valied

[no_mercy]

this would be the first time that i would be going to court (if it gets there)and i was wondering what the cpr meant and what kind of flaw would i be looking out for?

[lilly white]

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

[vjohn82]

PART 31 - DISCLOSURE AND INSPECTION OF DOCUMENTS - Ministry of Justice

 

PART 18 - FURTHER INFORMATION - Ministry of Justice

 

Take some time to read those...

 

(and try not to nod off)

[no_mercy]

sent a letter back to moorcroft saying that the copy of the agreement in question was a poor black and white photocopy and was not readable and to me was not deemed legible. Then backed it up with the legal terms and giving them 14 days to get me a better copy.

 

got a letter back from moorcroft saying that they will not be dealing with this matter no more and passed my account back to halifax. The same day i also recieved a letter from capquest stating that they are taking over the account and i must contact them by the 28 of dec.

 

please advise my next steps?

Edited December 21, 2009 by no_mercy