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not sure if this is in the right place. posted of this letter for friend with no internet access on the 19th october.

 

19th O cobber 2009

 

Halifax

P.O.Box 607

Trinity road

Halifax

HX1 2RG

 

Dear Sir/Madam

 

Re: − Account Number xxxx

 

this letter is a formal request pursuant to s.77/78 of the Consumer Credit Act 1974. I require you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.

 

I expect you to comply fully and properly with this request, within the statutory time limit. You are reminded that should you fail to comply with my request; the provisions of s.77 will apply.

 

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

 

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR).

 

I enclose a postal order in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose.

 

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee.

 

I look forward to hearing from you.

 

Yours faithfully

this was recieved back. can someone check it please

http://i1017.photobucket.com/albums/af291/beetlebug1/halifaxagreement.jpg

thanks in advance

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If the copy that they sent you was that illegible, then it is no good.

 

I cannot see if the prescribed terms are there. These are:

 

1. The APR % rate of interest.

 

2. The credit limit or a term relatiing to how it will be decided.

 

3. Repayment schedule. For a credit card, this is usually a % of the statement ballance.

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hi vint thanks for the reply

 

what they sent is a copy of the applications form even dorn to the moisten here

 

i am having trouble reading it, very bad photocopy. i have no need of glasses but for this i could do with a magnifying glass!!!

 

under the terms of the agreement as set overleaf the leeds will determine and notify you of the credit limit from time to time

 

interest will be charged on a daily basis at the rate of 1.49% ( can't find an apr finger)

 

within 25 days of the date of your monthly statement you must repay at least 5% of the amount shown as outstanding or £5

 

 

it mentions terms and conditions overleaf but obviously these are not there. there are about 8 pages of current terms and conditions though

 

thanks again for the reply

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hi vint thanks for the reply

 

what they sent is a copy of the applications form even dorn to the moisten here

 

i am having trouble reading it, very bad photocopy. i have no need of glasses but for this i could do with a magnifying glass!!!

 

under the terms of the agreement as set overleaf the leeds will determine and notify you of the credit limit from time to time

 

interest will be charged on a daily basis at the rate of 1.49% ( can't find an apr finger)

 

within 25 days of the date of your monthly statement you must repay at least 5% of the amount shown as outstanding or £5

 

 

it mentions terms and conditions overleaf but obviously these are not there. there are about 8 pages of current terms and conditions though

 

thanks again for the reply

Well, showing the APR is a prescribed term ( not monthly or daily ). If one of the prescribed terms is missing or misstated, then the agreement cannot be enforced by a court.

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Try this one.

 

xxxxxx 2009.

Dear xxxxxxxxx,

ACCOUNT IN DISPUTE

Re account no xxxxxxxxxxxxxxxxxxxxxxxxxxx

I write regarding recent communication regarding the above account. I acknowledge no dept to your organisation.

Further to my request under the above act, your attention is drawn to the fact that this account remains subject to a lawful serious dispute. On xxxxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request, supplying only an illegible application form, devoid of requied prescribed terms, and generic terms & conditions, which cannot be linked to any agreement which you claim that I have signed. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

Contrary to your assertion, xxxxxxxx have not complied with the terms of CCA 1974 s78. The documents that you have supplied, do not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me, for pre 2007 agreements. As you will be further aware, an agreement is not executed, until signed by both parties, so the document that you have supplied, being a reconstruction, cannot be a True Copy of an Executed Agreement.

While this account remains in serious dispute, the relevant main points of the Law and OFT regulations while the account is in this state and xxxxxx remain in default are:

  • You may not ask for payment against this account.
  • I am not obliged to offer any payment against this account.
  • You cannot register any data with a third party.
  • You cannot take any enforcement action, including registering Defaults.
  • You cannot pass the account on to a third party for collection.
  • You cannot sell the account.

Let me explain here, what a true copy is:

In a recent letter from the enforcement department of the OFT, the text below was quoted, explaining what is required.

“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.”

 

I also refer you to the information below.

1. A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

 

2. Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

 

2. The need for prescribed terms to be contained in the credit agreement is confirmed by the Author of the CCA1974 act, I quote ““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.”

I am now granting to you a further 7 days to produce a copy of an executable agreement. After that I will consider that the above matter is closed and that you will no longer pursue the alleged debt. If you are insisting that the non enforceable document, that you have supplied, is the only alleged agreement in your possession, then I would suggest that the best course of action would be to immediately set the balance of the above account number to zero.

I look forward to your response.

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Im subbing to this thread because im in a similar situation with regards to a Halifax CCA.

 

Beetlebug, im a bit further down the line than you having fought HBOS with regarsd to CCA's for over a year now so you may find some useful info and letter templates for future use on my thread. I've also had a new CCA page sent to me.

 

If some one could look at my thread and give me advice i'd greatly appreciate it, its post 39: http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/181052-urgent-help-needed-hbos-2.html

 

Good luck beetlebug, your fight has just begun but if we all help each other we can beat these ........... (insert your own word here!) ;)

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thanks acegordie

 

i will read through your thread later housework first

 

do you think this is an unenforcable cca?

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i dont have the expertise to say what would be an enforceable CCA, thats why i want the brilliant minds here on this site to check mine out! :p

 

Im sure we will both get great advice on our situations soon.

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