SB100 v Halifax Credit Card

[diddydicky]

Here's an interesting one...

 

I CCA'd Halifax a few months ago, and the agreement looked to be all good and proper so I've been paying every month.

 

I had a couple of 'issues' and missed the last two months payment.

 

I received a DN from the Halifax with a remedy date of 10th December 2009.

 

I have received a letter today dated 3rd December stating that as I've not paid by the date on the notice they've terminated my account.

 

I'm surspised to say that the letter of termination dated 3/12 plus a DN with a remedy date of 10/12 would appear to be unlawful recission of contract- and they wouldn't be entitled to collect anything other than the overdue figure on the DN.

 

Any thoughts?

 

the only thing i can think of is ......... which champagne shall i choose!!

 

if you need a reply letter ill do you one but i am away until next monday=- let me know and ill do it then

[diddydicky]

I've checked the CRA's but nothing showing yet.

 

Do you think the letter stating they'd terminated on 3/12, combined with the DN with remedy date of 10/12, is sufficient to defend should they bring proceedings?

 

Thanks for your help - and if / when you have a min to pen me a reply I'd be really grateful

 

sleep tight- you're home and dry!!

[diddydicky]

dear sirs

 

Re Account XXXXXXXXXXXXXXXXX

 

 

i refer to your Default Notice dated 19 November and received by me on XXXXXXXX and your subsequent letter of 3rd Inst in which you confirm that you had in fact terminated the above agreement

 

Notwithstanding any defect in the default notice, your pre -emptory action on 3rd December confirming that you had in fact terminated the agreement some 7 days prior to the deadline given in your default notice ( 10th December) resulted in insufficient time for me to even obtain an appointment with a solicitor let alone remedy the alleged default.

 

Having accepted your unlawful rescission of the agreement i note that you are now entitled to claim those arrears genuinely due at the time of the termination (not including any unlawful charges ) and i would be obliged if you would advise me of the exact amount of those arrears, against which will be a claim for unlawful rescission

 

Yours sincerely

 

 

XXXX

Edited December 15, 2009 by diddydicky

[diddydicky]

apologies- letter altered as i thought you told me something else!!

[diddydicky]

keep the reference in asking for the actual arrears amount as you need to be seen to be making an effort to settle the arrearst

 

by asking them for the exact amount (which they will not provide) then it is difficult for them to complain to a court that you have made no attempt to settle the arrears due (even though you will offset against a claim for unfair rescission)

[diddydicky]

just file it and ignore it

[diddydicky]

What happens if they reply and say they haven't terminated? I assume thats why we sent the acceptance letter?

 

they can hardly say they havn't terminated however that is not the reason you sent the acceptance letter

 

an unlwafull termination falls outside of the cca and into general contract law.

 

if one party informs the other of an intention not to perform their part of the contract the other (injured or "performing ") party then has two choices

 

he can ignore the unilateral action and insist that the other side remains contractually obligated to him OR

 

he can take the view that the contractual relationship has clearly broken down and that the other side does not intend to perform its obligations and ACCEPT the unlawful rescission which, strictly speaking does not actually terminate the contract , but allows the performing party to releive himself of any further obligations under the contract (same thing)

 

The intention not to perform has to be of sufficient importance as to remove one or more major benefits of the contract to the other party

 

in the case of a credit agreement the main (if not only) benefit of the contract to the debtor is the ability to borrow money and re pay it monthly at a rate of his own choosing (subject to a minimum) so clearly, if a creditor unlawfully tells the debtor that he is no longer prepared to let him continue with the agreement or if he demands repayment immediately of sums that would not otherwise yet be due then clearly he is removing a major benefit of the agreement from the debtor

 

 

The court COULD take the view that if the debtor takes NO action after he has been notified of the unlawful rescission- that he intends that the contract endures

 

by doing some positive act (although i believe not strictly legally necessary)

he removes the chances that some numpty judge might take the former view of the debtors inaction

 

hope that makes sense.

[diddydicky]

OH NO!!!! They've terminated my account........ again

 

oh no they haven't (you havent got an account to terminate) :D:D

[diddydicky]

nothing strange about it

 

they want to have their cake and eat it

 

they have terminated but also want to keep adding charges

 

i would just file and ignore the statements - they mean diddly squat and if it comes to court they can easily be removed from any claim they may make

[diddydicky]

dear sirs

 

re Your ref XXXXXXXXXXXXx

 

thank you for your letter of XXXXXXX

 

I am awaiting confirmation from your client of the (genuine) amount of arrears outstanding on the account as at the time of their unlawful termination,

 

Against this figure may be set a claim for unlawful rescission .

 

Save for confirmation of the arrears amount or service, all future correspondence from you will be filed unanswered

 

 

Y F

[diddydicky]

not whilst there are good looking dogs on the street, thank you:)

[diddydicky]

Dear Sirs,

 

thank you for your letter of XXXXXXXX

 

Your client unlawfully terminated the above alleged agreement (if indeed such agreement was ever properly executed/legally enforceable) and my obligation to them under the alleged agreement subsequent to their unlawful actions would have been solely for the amount of genuine arrears ,not including unlawful charges, as at the time of the unlawful termination.

 

In this instance i believe that any such arrears are outweighed by a counter claim i would have for unlawful rescission.

 

This therefore means that it is my position that your client is indebted to me.

 

 

I therefore do not require any "facility" you might offer to put myself and the creditor "in contact" , nor to assist me to pay any debt which i do not admit.

 

I will respond as appropriate to any written communications directly from your client (unless you are to legally represent them in proceedings), failing which i expect your client to now either "Put Up" or "Shut Up".

 

In view of the foregoing, any further contact from yourselves, save for service of court documents will be the subject of complaints to the OFT and Trading Standards.

 

Yours Sincerely

 

 

XXXX

 

 

Yours sincerely

[diddydicky]

legend or leg end:)

[diddydicky]

I suggest a slight revision to dd's letter:

 

From:

 

 

To:

 

 

The later version is more assertive.

 

HTH

 

Dad

 

thanks dad (you passed the test:D)

[diddydicky]

I'm still getting loads of letters (one every other day) from Albion. Whilst I told them I wouldn't reply to them I'm getting rather hacked off. Is there any point doing anything further?

 

if the letter is repeating previous points/not advancing any argument then do as you said in the letter and file it unanswered.

 

 

this will cover you in any future proceedings

 

if it raises new issues only then need you respond