Halifax cc Reconstituted CCA missing prescribed terms - what now?

[horsemad1]

Hi need some advice please. Did a s78 cca request for the OH's Halifax credit card a couple of weeks ago and they replied with 'a reconstituted version of the executed agreement comprising bothe the original and currecnt terms and conditions (these were printed seperate sheets) and a copy of the original signed application form together with a signed statement of account'.

 

I am aware that they have satified their obligation as they have provided 'a' copy, however, it does not include any of the prescribed terms ie. Credit Limit, Repayment schedule, Lenders signature. The agreement was made Sept 06.

 

What should be my response? Should I SAR so that they have to provide the actual true signed copy? Advice would be greatly appreciated.

[miss muppet]

Hi Horsemad, well they may have fulfilled their obligations but its enforceability in court that will matter. A subject access won't hurt but since they have had to come up with a reconstructed agreement that probably won't produce it either, have a look at Fred Bassett's v Halifax thread, there's a letter on there which may suit your case and I am also including a link below which I have found helpful in my endeavours:-

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/211306-new-tack-supplying-cca.html

[horsemad1]

Cheers MM, thats was my thoughts too, just wanted it confriming what I was thinking. Am ready to play hard ball now then!

[horsemad1]

Here is my response:

I am in receipt of your letter dated 25th May 2010 regarding the above account.Further to my request dated 29th April 2010 under s78 of the consumer credit act, for a true copy of any credit agreement that you may hold, I have to date only received current terms and conditions[/font] which you will be aware does not constitute an executed agreement. It is not sufficient for you to claim that you would have had an executed agreement signed. That document needs to physically exist, for 6 years after the account has been closed.

Contrary to your comments, Halifax have not complied with the terms of CCA 1974 s78. A reconstruction does not comply with your duties to supply a “True Copy” of any agreement you claim to have been signed by me.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 refer you also to the information below.[/font]

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.”[/font]

 

You have confirmed that what you have sent me you believe to be a true copy of the credit agreement that exists in relation to this account. As you have sent this document in response to my requests under Section 78 (1) of the Consumer Credit Act 1974, then this statement by you is now binding on you as per section 172 of the Act.[/font]

 

Section 172 states:

 

172 Statements by creditor or owner to be binding (1) A statement by a creditor or owner is binding on him if given under— section 77(1), section 78(1), section 79(1), section 97(1), section 107(1)©, section 108(1)©, or section 109(1)©. THIS MEANS THAT THE DOCUMENT YOU HAVE SENT IS THE ONLY DOCUMENT YOU MAY NOW RELY ON IN ANY ATTEMPT AT ENFORCING THIS ALLEGED DEBT. Any further documentation you may present is irrelevant as you did not provide it in response to my lawful request.

 

 

 

This debt is completely unenforceable under S127 of the Consumer Credit Act 1974. The CONSUMER CREDIT ACT 1974 is clear on what agreements must contain in order to be enforceable, even in court. At the very least, an agreement must contain the following within the signature document to be enforceable, even in court:

• A credit limit or a statement as to how this will be determined.
  
• An APR.
  
• A schedule of repayments.
  

These are the prescribed terms as required by the Act and subsequent Regulations. There are also many other things, which are called required terms, that should be in an agreement. These include:

• Details of default charges.
  
• Statements of protection for customers.
  

The agreement you have sent me does not include all of the information needed to make it enforceable, and therefore it is completely unenforceable under Section 127 of the Consumer Credit Act 1974.

 

If you deny that the document you have sent me fails to comply with the Consumer Credit Act 1974. In that case, given the facts I have outlined above, perhaps you could direct me to all of the prescribed and required terms in the agreement you have sent me. I think you will find that they are not there.

I expect Halifax to comply with my outstanding request within 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, and remove any adverse data that you may have registered with credit reference agencies.

Edited June 7, 2010 by horsemad1

[horsemad1]

letter posted yesterday

[The Mould]

letter posted yesterday

 

 

Hello there horsemad1,

 

Be careful, you might end up with a severe case of Halifax poisoning.

 

Whether it be a Civil or Criminal hearing/trial, and no matter who the claimant is or however many defendants there are to the action, it always amounts to a case of....

 

 

FACT v FICTION

 

Decisions/Rulings made by the Courts are based on Fact and not Fiction.

 

A reconstituted or reconstructed contract/agreement by no means eliminates doubt, if it is to be held that such documents (as mentioned) are indeed enough to prove a claim brought by a creditor, then anyone can bring an action and secure success for their claim or indeed present a successful defence based on his or her word alone.

 

If they have not in their possession the original document, they can not then indisputably prove their claim by eliminating doubt or any reasonable doubt.

 

As far as the Law of probabilities is concerened, assumptions are just that, mere theory, such as 'well I think', 'they might of done this or they might of done that', 'they probably would of used this', it is unknown and yet to be proved with something solid or something real, actual evidence.

 

Kind Regards

 

The Mould

[horsemad1]

 

[/ATTACH]

 

This is what i receeived in response to my CCA request

[horsemad1]

This is their response to my last letter. What should be my response???

[miss muppet]

erm, Horsemad, think we might need a microscope, try using one of the fee photoimaging sites such as photobucket:)

[horsemad1]

Oh crap! I'll try again....

[miss muppet]

Horse crap - very good for the roses:D

[horsemad1]

http://i392.photobucket.com/albums/pp8/julieh2/HalaifaxreconstitutedCCAfrontsid-1.jpg

http://i392.photobucket.com/albums/pp8/julieh2/ReconstitutedCCA.jpg

http://i392.photobucket.com/albums/pp8/julieh2/Responsetoreconstitutedccabackpage.jpg

http://i392.photobucket.com/albums/pp8/julieh2/Halifaxlettertellingmeitiscompliant.jpg

 

These any better???

 

Ha yeah, I've got loads of Horse crap!!!

[miss muppet]

Much better - I'm leaving the enforceability issue to those more experienced than me but I notice that in the letter they say that you ask for a reconstituted version of the true copy of your agreement, well I'm sure thats not what you asked for and they will need the real thing if they want to enforce in court.

[freethemice]

It may help here to think away from the technical issue and onto the nature of the problem. So you think the agreement isn't compliant. So what?

In what way did this disadvantage you?

In what way did Halifax not honour the agreement you signed?

 

Also bear in mind that such things as reporting you to third party credit reference agencies, passing this onto debt collectors and even starting court proceedings are not now considered enforcement action.

 

Although you could technically to get a court to agree that because of failure to be honest and true in answer to a s78 request no enforcement action (i.e. county court judgement) can be awarded. This can be remedied by a better response to your s78 request at any time. This wouldn't in itself write off your debt.

 

I do feel your best option here is to state clearly and loudly what you want.

"I suspect Halifax plc have destroyed or altered my original agreement and believe the consumer credit act gives me the opportunity to view this document for a reasonable fee or be told the truth. This s78 request dated xxxxxxx was not for information purposes or to find out the state of my account but purely to find out what Halifax Plc have done with my confidential and private informantion.

Please state if Halifax have retained the original agreement I signed or if all Halifax now have is a copy of this document residing on its microfiche filing system.

This is not an unreasonable request and it is in Halifax's best interest to be honest and frank with me with this dispute."

 

or actually phone up Halifax data protection. They are quite honest over the phone.

 

Point is if you don't pay at some point Halifax will take you to court and you will end up, like me, having to defend against a massive team of solicitors with little chance of legal aid and just google and these forums for help. Very tricky and stressful business especially when it gets down to microfiche copies and witness statements to assert an agreements validity.

Edited June 28, 2010 by freethemice

[horsemad1]

Thanks but Im not doing this to get the debt written off,

The Halifax have been a right pain in the ar*se about getting a reduced payment plan agreed and would not freeze interest when I explained my dire financial circumstances, all the while piling interest and charges on and so the amount I paid each month was eaten up by interest and what was owing increased????!!

 

So, its about having a bargaining tool to use to get a low full and final settlement to get rid of this debt and these robbing b*stards once and for all.....

[horsemad1]

Can someone take a look at my attached CCA (previous post) and tell me whther I am right in thinking it is unenforcable?

[miss muppet]

bump

[Indebt1]

I am not going to pretend to fully understand credit agreements and legal jargon.

all i would like to say and please do correct me if i am wrong, if you are convinced that you have a 'a reconstituted version of the executed agreement ' or a bad copy and paste job like i do, if you can prove that i cannot see why you cant go and fight a team of solicitors or for that matter i dont think they will take you all the way based on dubious docs.

they will probably bluff you until the 11th Hour and call it off or negotiate a settlement.

thats what im hoping for anyway.

for the record i told Halifax i was having issues paying and tried to discuss and i was told instantly to cut up my cards and was hit with a barrage of letters within days, we are not exactly in this position because we want to be. good luck

[horsemad1]

BUMP

 

Could someone please look at the agreement (post 12) and confirm whether it is unenforceable?

[horsemad1]

[quote=Indebt1;.

for the record i told Halifax i was having issues paying and tried to discuss and i was told instantly to cut up my cards and was hit with a barrage of letters within days, we are not exactly in this position because we want to be. good luck

Cheers Indebt1, I have also found the halifax dreadful to deal with, yes they were pleasant enough (sometimes) on the phone but as far as getting frozen interest, they just wouldnt budge, I was paying £50 p/m reduced payment and they were piling on £55 p/m interest and that was only at 1%, they just refused to freeze it point blank saying that was as low as they could go - so whats the bloody point?!!!.

[horsemad1]

http://i392.photobucket.com/albums/pp8/julieh2/HalaifaxreconstitutedCCAfrontsid-1.jpg

http://i392.photobucket.com/albums/pp8/julieh2/ReconstitutedCCA.jpg

 

Could someone with more experience please tell me if this agreement is enforceabl or not? I wnat to offer Full & Final on it so it would be handy to know this first. Thanks.

[zingy]

Horsemad1 - you have some details that need to be taken out: the personal reference number and the bit at the bottom on the first document.

[horsemad1]

Thanks Zingy, have done that now. Can you ar anyone confirm whether this agreement is enforceable - PLEASE?

[middenmess]

Agreement is to small to read-can you repost at a larger image size please?

[horsemad1]

hi middenmess, thanks for your reply, I attached it again on post 21 via and if you click on it twice it zooms in - let me know if it doesnt work.