CBR vs Halifax/BOS

[CBR600F]

Well I scanned them in but the quality is carp.

Doesn't matter how good a scanner or camera is if there are missing bits they stay missing............

[cymruambyth]

PLEASE NOTE DUE TO RECENT LEGAL CASES THIS BELOW IS BEING REVIEWED.. 7th January 2010

 

IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)

PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE

CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations

(If you just want to find out, skip the bits in between the stars it’s just some extra information)

 

**What do we mean by unenforceable?

In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.

Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

 

How does unenforceable differ from enforceable with a court order only?

When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.

When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

 

The Pescribed Terms are these

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

--------------------------

 

Which of these applies to you depends on the type of agreement you have?

 

For a Running Account (credit card) agreement

 

BC and D Apply

 

 

 

 

For a Restricted Use Debtor Creditor Supplier

• Where the dealer is the supplier and the creditor is the one providing the finance.
  
• The money can only be used for the purpose it is given.
  
• There is no interest on the purchase (the cash price is the same as the total price)
  
• And there is no advance payment
  

A is applicable

 

For a fixed Sum Credit Agreement

A conventional credit agreement with none of the above restrictions

 

A and B apply

 

For a Hire Agreement

 

B is Applicable

 

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and4 this will be the subject of the next paper.

Please note that these Prescribed terms where not changed in any way by the 2004/1482 Ammendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreemens executed before that date.

 

In my view it doesn't comply with this. Plus it needs to be legible.

[CBR600F]

Thanks cymruambyth for posting that up.

 

So the question is what should I do.

 

Obviously I need to prepare a proper defence.

 

But would it be sensible to write to BOS stating that the documents are of a very poor quality but of what is readable it does appear they do not contain the relevant prescribed terms and therefore the agreement is unenforceable.

[cymruambyth]

I would start working on a full defence. AS for letting them know, it probably isn't worth the paper.

This is only my opinion, so if you have no further advice in a few days time I would PM a more experienced Cagger or a Site Team member with a link to your thread and ask them for guidance.

[citizenB]

Update,

 

Received today requested information.

 

The agreement(which is the application) and which is barely legible was from Bank One and was dated as received at the beginning of Oct 1999, I can't make the the 2nd digit of the date out first is also most certainly only a zero.

 

Does anyone know the connection between Bank One and Halifax/BOS?

 

The DN they have provided is what is called a mail merge template document. They state it would have been sent 1st class.

 

 

 

 

Halifax apparently took over Bank One Cashback Card sometime in 2000.

 

With respect to the Default Notice, I am assuming you did not receive an original therefore you would not have access to the envelope.

 

Have you kept envelopes from other correspondence of Halifax or noticed what type of mail service they use ? It is my observation that nearly all of Halifax Mail is sent out via second class or UK Mail services. Having just looked at the Default Notice sent to OH not only was it sent via 2nd class UK Mail, they also havent given the correct amount of time to remedy.

 

Can you let us see a copy of the "template" they have sent you and can you also let us know the date of issue and the date of remedy. Thanks.

[citizenB]

In the section headed "Conditions of Use" at the bottom of your agreement. Is that a separate section ?

 

I also note they say, that these terms and conditions are taken from clauses 6 and 7 of Bank One terms and conditions and then direct you to " Please refer to them for applicable definitions".

 

I am not sure that is correct, ALL the prescribed terms should be in the one document or documents supplied at the same time. So where are the terms and conditions that you need to refer to ?

[CBR600F]

CB,

Now you mention it they have not supplied the terms and conditions, they have just supplied a document titled 'Conditions Of Use'.

 

So they have failed to comply with the CPR31.14 request.

[CBR600F]

Unfortunately I was not keeping envelopes but as the letter they just sent was dated the 27/4/2010, didn't arrive until 30/4/2010. Then I think they will have hard work convincing anyone that the DN would have arrived the next day!

 

All Docs to date: -

Halifax DN

Halifax Termination Letter and Letter Before Action

Halifax Claim form

Halifax Letter 270410

Halifax Agreement

Halifax DN Template

Halifax DN Log

[CBR600F]

The latest from BOS:-

 

 

Now an interesting question is that they say:-

 

'If you still dispute that the sum is due by you please let us know this and we shall arrange for the court to arrange a hearing on this matter'

 

 

Now am I being a little bit thick hear?

 

They are affectively saying, to my mind, that if I don't dispute it, then they are NOT going to continue the court proceedings?

 

Any comments are most welcome.

 

I have been a bit distracted due to other more (can you believe it) serious problems...

 

CBR

[cymruambyth]

Sorry I think you are wrong in your interpretation. They may be trying for the SJ route or just hoping to lull you into a false sense of security so that you do not do anything whilst they still proceed.

[CBR600F]

I am still waiting to hear from the courts about about my case with BOS/Halifax.

 

I have still not heard anything after over forty days from submitting my embarrassed defence...

[cymruambyth]

I would phone the court and ask what is happening, sometimes they have a backlog, sometimes paperwork goes missing.....

[CBR600F]

"Its been a long time..." (Star Trek Enterprise)

 

Anyway cymruambyth I know how this works so have just been expecting the AQ.

 

Finally got the courage up to phone the Bulk center.

 

Oh it is such a shame I am happily married!

 

The wonderful lady who dealt with my inquiry made me feel like a real person and the victim in all this, telling me that I had done the right thing by submitting a defence.

 

 

The case has ( as I suspected) been stayed.

 

For BOS to do anything they will have to apply for a lifting of the stay.

 

The defence was submitted the 27th April.

 

Am I right in thinking that everyday they NOW wait makes it more unlikely for the stay to be lifted????

[CBR600F]

Any comments?

Edited June 21, 2010 by CBR600F

[citizenB]

Yes, the case is stayed until such times as they decide to move forward ie pay for the next step.

 

I think if you believe you have a strong enough defence then you can apply to have their claim struck out. That will sort it once and for all.

 

Please be aware that these Money claims can linger for quite a while. I have one that has been in limbo for nigh on a year.

 

It is worth telephoning at least once a month to ask the status of the claim.

[freethemice]

I wouldn't get too excited about the stay. My case was stayed over 3 months before those marvelous solicitors at Scm took it over.

The important thing here is to be seen to be doing something like seeking disclosure of documents needed to defend under cpr31.14 or actioning a complaint with Halifax directly over the issues that concern you.

 

Long, long process though and it certainly isn't an easy road

 

My thread may show you what you will soon be facing with reconstituted agreements and failure to disclose. I have the allocation/directions hearing soon which should be great entertainment.

 

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/251664-g-bank-scotland-scm.html

[CBR600F]

Hi all,

a year on.

I have had one letter in Feb offering a deal.

Nothing since.

 

How do I go for a strike out?

[CBR600F]

Bump

[CBR600F]

..

[AndyOrch]

Hi CBR

 

Make application using the N244 and request a SO detailing the length of stay and none response of the Claimant.

It would cost £45 without an hearing but the DJ may request one and so you would have to pay the difference unless you are exempt.

 

Regards

 

Andy