Halifax cc Reconstituted CCA missing prescribed terms - what now?

[middenmess]

It was post 21 that I was trying to read:)--too small for me to read clearly!

[horsemad1]

Cant seem to make it any bigger via Photobucket, may just be being extremely stupid..... - any ideas?

[zingy]

Cant seem to make it any bigger via Photobucket, may just be being extremely stupid..... - any ideas?

 

If you have MS Word 2007 or higher, you could paste the picture into a Word document and then save it as a pdf document (and then attach it to a post).

 

I do this with most of mine and the pdf will automatically display at 145%. This might work?

[horsemad1]

Thanks Zingy, I'll try and see what happens

[middenmess]

Cant seem to make it any bigger via Photobucket, may just be being extremely stupid..... - any ideas?

 

At what size is it saved on your hard drive?

[horsemad1]

reconstituted CCA reverse.pdf Edited July 13, 2010 by horsemad1
removed name & address

[middenmess]

You've left your name and address on it--suggest you remove asap!

[freethemice]

Credit limit is a prescribed term and one that should be agreed at the date of signature. To send you this information later is to avoid the consumer credit act.

 

I would suggest a response as below (amend as neccassary). These issues are very stressful and complicated to defend though and if you want to know how this is likely to play out in court see my thread and my problems with disclosure:

 

Following the recent ruling in the Supreme court, 7th July 2010, Southern Pacific Securities 05-2 Plc (in substitution for Southern Pacific Personal Loans Limited) (Respondent) v Walker and another (Appellants) The need for prescribed terms to be present in any agreement have been reaffirmed at the highest level. I quote:

 

12. The Act and the Regulations distinguish between ‘prescribed terms’ and

‘required terms’. In the case of an agreement predating 6 April 2007 such as the

agreement which is the subject of this appeal, by section 127(3) of the Act a failure

properly to include a prescribed term in the agreement renders the agreement

wholly unenforceable, whereas a failure properly to include a required term merely

means that the agreement is enforceable only by court order under section 65(1) of

the Act. In the case of the agreement in this case, the prescribed terms were: a term

stating the amount of credit (Agreements Regulations reg 6(1) and Sch 6, para 2), a

term stating the rate of any interest on the credit to be provided under the

agreement (ibid Sch 6, para 4) and a term stating how the debtor is to discharge his

obligations under the agreement to make the repayments (ibid Sch 6, para 5).

 

In your letter dated xxx you state that the credit limit was not on the agreement signed. It is not open to creditors to supply this information later and it would not be fair on me as a customer to bind me into an agreement without a clear understanding of the terms this would include.

 

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.

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.

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.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/251664-g-bank-scotland-scm-7.html

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[horsemad1]

Brilliant!!! Thanks FTM, good luck with your case.

[Drederick Tatum]

Halifax don't need to show the credit limit on cards as they are classed as a running account, they only have to show it on fixed sum credit agreements.

 

This CCA looks enforceable to me.

[middenmess]

Halifax don't need to show the credit limit on cards as they are classed as a running account, they only have to show it on fixed sum credit agreements.

 

:eek:Wot!

 

AFAIK The credit limit is one of the prescribed terms required by the 1974 CCA

[Drederick Tatum]

:eek:Wot!

 

AFAIK The credit limit is one of the prescribed terms required by the 1974 CCA

 

It is, but they don't have to have a set figure on the CCA for a running account and can have on there that the credit limit will be determined by the creditor from time to time and notified to the debtor, or words similar to that.

 

It's only fixed sum credit agreements (loans) that they have to have an actual amount on the CCA.

[horsemad1]

Doesnt show repayment schedule either and isnt PT357 court case against EGG cc based on the fact that the prescribed term 'Credit Limit' is exactly that?

[Drederick Tatum]

Doesnt show repayment schedule either and isnt PT357 court case against EGG cc based on the fact that the prescribed term 'Credit Limit' is exactly that?

 

It shows your repayment schedule on 2.2 where it tells you what you have to pay each month.

 

I'm not sure what PT357's court case is with Egg but the case I have heard a lot about against Egg is the wording of 'approved limit' instead of 'credit limit'.

 

That wouldn't matter with this one as yours says credit limit anyway.

 

You might want to get it checked out on the Debt Collection Industry forum on this site which is busier for more opinions but this to me is enforceable, however I hope I'm wrong.

[horsemad1]

Thanks for the reply. No Creditor signature either - doesnt it have to be signed by both Debtor & Creditor?

[Drederick Tatum]

It does but I believe the judge will allow them to sign it in front of him to make it legally binding.

[middenmess]

It does but I believe the judge will allow them to sign it in front of him to make it legally binding.

 

 

So you believe that getting a bod from the Halifax to sign a reconstituted agreement in front of a Judge moments before the trial begins and some 4 years after they made the agreement makes everything tickety boo?

[Drederick Tatum]

So you believe that getting a bod from the Halifax to sign a reconstituted agreement in front of a Judge moments before the trial begins and some 4 years after they made the agreement makes everything tickety boo?

 

Pretty much.

[nodefaults2010]

how can signing a reconstituted copy in front of a judge 4 years on from the date an agreement is claimed to have started be binding??

 

Aside from the issue of this not being a true copy anyway, surely English contract law does not allow for this?? As far as I am aware a contract has to be signed on the date listed on the agreement otherwise it is not binding from that date.

 

I have worked with a lot of finanical contracts in past employment and lawyers I have worked with have always insisted that any English law docs are signed on the date listed in the contract, even if it is stated as an "on or about" date rather than a discrete date. Otherwise the contract cannot be deemed to have taken effect and contracts cannot be backdated without the explicit agreement of both parties.

 

So surely if they sign an agreement 4 years on, it can only take effect from that date. Also, couldn't the alleged debtor rescind the contract as well based on the fact that it has not taken affect yet?

 

Drederick - what are you basing your view on? What legal points are you aware of that support your conclusion?

 

thanks

Edited July 20, 2010 by nodefaults2010

[horsemad1]

Thanks for your replies, however if it ever got as far as going to Court, I would use a CPR 31.4 request for a copy of the original agreement in its original form along with any default notice and assignment notice - which we haven't had yet.

 

I would tend to agree that if they cannot produce the original agreement in Court with original signatures - then no case surely, how can they get away with making up an agreement and then signing it in front of a judge - surely that is then a new agreement and one that we had never agreed to???

[Drederick Tatum]

how can signing a reconstituted copy in front of a judge 4 years on from the date an agreement is claimed to have started be binding??

 

Aside from the issue of this not being a true copy anyway, surely English contract law does not allow for this?? As far as I am aware a contract has to be signed on the date listed on the agreement otherwise it is not binding from that date.

 

I have worked with a lot of finanical contracts in past employment and lawyers I have worked with have always insisted that any English law docs are signed on the date listed in the contract, even if it is stated as an "on or about" date rather than a discrete date. Otherwise the contract cannot be deemed to have taken effect and contracts cannot be backdated without the explicit agreement of both parties.

 

So surely if they sign an agreement 4 years on, it can only take effect from that date. Also, couldn't the alleged debtor rescind the contract as well based on the fact that it has not taken affect yet?

 

Drederick - what are you basing your view on? What legal points are you aware of that support your conclusion?

 

thanks

 

From the Consumer Credit Act 1974.

 

http://www.opsi.gov.uk/acts/acts1974/pdf/ukpga_19740039_en.pdf

 

65.--(1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.

 

There's more about it in the 4th post in the thread I've linked below, btw most on here that have more knowledge about CCA's than I do believe that a stamp is acceptable as a creditors signature.

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162851-consumer-credit-agreements-guide.html

[nodefaults2010]

thanks Drederick.

 

it does state in that 4th post from the link you sent that an agreement would probably not be enforceable if there was no signature (copy of unsigned application form). I presume this refers to the debtor's signature though.

 

Although, it seems a bit of a gray area and a hanging judge may choose to interpret this in such a way that the agreement is still enforceable. Surely if this went to appeal it would be a good case for being overturned though?

 

Anyway, this thread you referenced again points out that a reconstructed agreement should not suffice in court if it is argued against properly, hence whether they signed it or not in front of the judge should be irrelevant if theey cannot produce the original or a true copy.

[Drederick Tatum]

thanks Drederick.

 

it does state in that 4th post from the link you sent that an agreement would probably not be enforceable if there was no signature (copy of unsigned application form). I presume this refers to the debtor's signature though.

 

Although, it seems a bit of a gray area and a hanging judge may choose to interpret this in such a way that the agreement is still enforceable. Surely if this went to appeal it would be a good case for being overturned though?

 

Anyway, this thread you referenced again points out that a reconstructed agreement should not suffice in court if it is argued against properly, hence whether they signed it or not in front of the judge should be irrelevant if theey cannot produce the original or a true copy.

 

That thread was from before the Carey vs HSBC test case, since then people have been taken to court with only a reconstituted agreement.

 

Bankruptcy and Living With it • View thread - reconstituted CCA - to be used in court against me

 

I think what you will find is that if the OP takes this further Halifax will reply saying that they've got the agreement saved to microfiche which is what they've printed off to form the reconstituted agreement.

 

The best bet here is for Halifax to make a mess of the default notice so they can only reclaim any arrears.

[nodefaults2010]

if they take you to court, request a CCA under a CPR request...if they cannot produce a signed original they do not have anything to enforce.

 

an incorrect default and termination notice will definitely add weight to your case though and limit any amount owed to arrears vs damages for loss of credit reputation.

[horsemad1]

Thanks ND, that was my thought process too!