letter recevied from halifax

[adrianenler]

Hi all newbie here ,looking some help ,I have a credit card with Halifax ,got into to diffs ,signed up to DMP last year with Kensington ,but after 6 months fell out with them ,I continue to pay the reduced payment of £5 a month direct to them ,about two months ago, start to get letters and phone calls from robinson way. Found this web site ,after reading some threads ,decided to send of a CCA request ,within the 14 days received a letter with two copies of Halifax Credit Card conditions of use ,but no signed copy . I then send of a reminder letter, I then received the letter below, just wondering if someone could advise me.

 

http://s904.photobucket.com/albums/ac244/adrianenler/?action=view&current=halifaxletter.jpg

Edited July 11, 2010 by adrianenler

[maroondevo52]

Hello and Welcome,

 

The attatchments are too small to read, you could try 'Tinypic' or 'Photobucket'.

 

Regards.

 

Scott.

[adrianenler]

hi maroondevo

hope this works

Edited July 3, 2010 by adrianenler

[maroondevo52]

Hi,

 

Can see the letter ok, but again it's too small to read, and I've got my specs on

 

Could you try TinyPic - Free Image Hosting, Photo Sharing & Video Hosting

 

Thanks.

 

Scott.

[adrianenler]

copy of letter

 

 

 

Further to our letter dated 11th June ,at the moment we are not able to provide a copy of the original signed agreement ,however we can confirm that our procedure has always been to obtain our customers signature to an agreement containing the prescribed terms before entering into a credit card agreement. As such ,we are confident the agreement remains enforeable.

 

By providing you with the documents attached to our previous letter, we have satisfied our abligation to provide a copy of the executed agreement under Section 78

 

However, even if an agreement is unenforceable ,the contract still has legal effect and is not void, the lender is merely preventedfrom seeking an enforcement order from the court.It has always been our process to ensure that an agreement complying with the CCA requirements would have been signed by the customer before setting up a credit card account . Should this matter proceed to court we adduce evidence to confirm this .

 

If you are using the services of a claims management company we would like to remind you of the recent warning issued by the ministry of justice and cab.

 

 

Finally ,we must remind you that failure to make payments under this agreement will result in collection activities and default may also be reported to cra

[maroondevo52]

Hi,

 

They have not complied with your request, send them the 'Dispute' letter, recorded and do not sign it.

 

http://www.consumerforums.com/resources/templates-library/86-debt-collectors/571-failiure-to-provide-a-copy-of-the-agreement-within-the-prescribed-timescale

 

Regards.

 

Scott.

[firstship]

Hi..welcome..this is a typical Halifax Bullsh..t letter,NO AGREEMENT MEANS THEY ARE IN DEFAULT OF s78 of CCA 1974 as long as you have sent a letter after 12+2 days ACCOUNT IN DISPUTE,the remainder of their letter regarding referring it to a DCA is standard practice.The 1st para of their letter is in contravention of OFT guidelines,they must not suggest that their procedure confirms the existence of an agreement when they cannot produce an agreement,it also in contravention of the FOS and ICO and Halifax are well aware of this,keep us posted on this thread we will guide you through the long Halifax process,in the meantime have a look through the HALIFAX THREADS on this site it will give you a clear idea of how 100s of us have dealt with Halifax in the past........all the very best....FS

Edited July 3, 2010 by firstship
maroondevo52 helped me in the past

[adrianenler]

Hi all, thanks for the advice, Scott and Firstship.

I was just wondering in the letter it says “Should this proceed to court we will adduce evidence to confirm this , what do they mean ,can they produce anything else?

Ive send them a CCA reminder letter ,will now send them Dispute letter.

[maroondevo52]

If they could produce something, I'm sure they would have by now.

 

I'd send the dispute letter, see what they come back with.

[adrianenler]

thanks scott

[maroondevo52]

Let us know how they respond.

[adrianenler]

hi all received this letter today ,just wondering what next

 

 

 

14july2001.jpg picture by adrianenler - Photobucket&

 

halifax 14 julu picture by adrianenler - Photobucket

[firstship]

your letters are more standard Halifax replies,as long as you sent the account in dispute letter,the ball is in their court.the advice from Scott is as always spot on.They have not complied with your CCA request,probably end up with DCA..........FS

[adrianenler]

Thanks again ,should I compaint to the financial ombudsman or just them make the next move

[firstship]

let them make the next move the FOS not the best at answering your ? in a sensible time....FS

[Undercover-Elsa]

Hi,

From their letter it sounds as if the set of terms and conditions you describe were actually a "reconstructed agreement", a tool they use to satisfy their obligations under s 78 requests in order to (in their view) remove the dispute status.

However without a signed original agreement they cannot enforce it in Court, although they may imply that they can.

I doubt the FOS would be any use TBH..another guy I'm helping was told by them "it is unfair and unreasonable to avoid paying a debt because a signed agreement cannot be found" A chilling indictment of their "fair and independant" status!!!

Might be an idea to post up those T&Cs for us to check..they often quote Acts which hadn't come into existance when the credit was taken out, which makes a nonsense of them...

 

Elsa x

[adrianenler]

Hi Elsa

Thanks for your help ,they sent me two different T&C the 1st ones which Ive posted below have my old address, went I applied for the card

 

 

 

halifax :: halifaxtc1001.jpg picture by adrianenler - Photobucket

 

halifax :: halifax t&c 2 picture by adrianenler - Photobucket

[Undercover-Elsa]

Hi Adrian,

Yes, that's a "reconstructed agreement" which means that they have technically complied with your CCA request, assuming they also sent you a statement of account. So the account is no longer in dispute on this basis.

However..they have admitted that they cannot find the original agreement and hence they cannot enforce it in court. Their "other evidence" routine is mainly bluster and any attempt at this could be countered in Court by demanding an audit trail, sworn witnesses who must have worked in the relevant department on the date the card was taken out..etc etc

 

Have a good look through the hard copy of the reconstruction. Bearing in mind what date the card was taken out, can you see ANY references to Acts passed later than that? I've tried to look but cannot see any on your scans. It's not crucial but it's the icing on the cake if they have as it proves their reconstruction is not applicable to your account (therefore the account WOULD still be in dispute)

 

Elsa x

[Undercover-Elsa]

Also, here's a good thread on reconstructed agreements:

 

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

[adrianenler]

Hi Elsa

Thanks for your help , I ve been paying a reduced amount as agreed went I was in a DMP ,I have not received a statement from Halifax for 10 months since I move to my new address ,they were inform of this, they confirm my out standing balance went I requested CCA .

My understanding is until ,Halifaxt supply me with a signed copy of my original CCA this agreement remains in default ,could someone please confirm this .

[firstship]

that is correct send them a letter.(template on site) account in dispute..FS

[Undercover-Elsa]

Hi,

Unfortunately as they have complied with your Section 77/78 CCA request(by supplying the reconstructed agreement and stating the balance etc on your account) the account, in my opinion, is no longer in default in that respect.(Unless after going over it with a fine tooth comb you can find something which proves it is not representative of an agreement which would have been in force on that date..eg later Acts quoted or wrong amounts for charges).

 

I don't agree with it, but that is currently the law following clarification by a recent test case. To me, they should have to supply a copy of the signed agreement in response to the request...which would then save everyone a lot of trouble, letters and wasted Court Claims..but sadly a rather ill informed judge ruled otherwise

 

 

HOWEVER!! You have something even better...a statement from them to the effect that they cannot find the agreement so cannot enforce in court.

Treasure this and keep it safe.

It means you may get passed around from DCA to DCA, but your response will always be to refer to that letter to send them packing.

 

If you wish I can provide you with a letter of response re the reconstruction.

 

I think that the earlier responses by others were made under the assumption that only T&C's had been supplied as stated in the first post on the thread....in which case the a/c WOULD still have been in dispute for non compliance with the CCA request. However, I believe the advice may have been different had they known it was in fact a reconstructed agreement..so I welcome further comments in the light of that knowledge.

 

Just my opinion, as ever...by all means wait for more input..

 

Elsa x

Edited July 21, 2010 by Undercover-Elsa

[Undercover-Elsa]

As we now know that they have supplied a reconstructed agreement (as opposed to T&Cs) as now allowed by law in response to a s.77/78 request, on what basis do you feel it is in dispute, Firstship?

 

Elsa x

Edited July 21, 2010 by Undercover-Elsa

[Undercover-Elsa]

Hi again

So that you know the basis behind my opinion, here's the OFT Consultation Paper on completing Section 77/78 CCA requests and consequences of non compliance, drafted after the test case

( Carey v HSBC Bank plc [2009] ).

The thing is, we've recently been sold down the river, both by the Courts and the OFT, in terms of what the creditor has to supply in respect of a CCA request and indeed what can be done when an account is "in dispute".

The full paper is in the attached PDF, but briefly, here is what we are told they can supply:

 

2.17 The copy of the executed agreement must be a 'true copy' of the original. However, as confirmed in the recent case of

Carey v HSBC Bank plc,7 the term 'true copy' does not mean a carbon, photocopy, microfiche copy or other exact copy of the signed credit agreement.

 

2.18 Further, section 180(1)(b) and regulation 3(2) of the Copies of

 

Documents Regulations expressly allow certain matters to be omitted from the copy. There may be excluded from the copy of the executedagreement to be provided under these sections:

 

• any information relating to the debtor, hirer or surety, or information included for the use of the hirer or creditor only, which is not required to be included by the Act or any regulations made under theAct as to the form and content of the agreement

 

• any signature box, signature or date of signature

• in the case of pawn agreements, any description of the article taken in pawn.

 

 

 

 

 

 

 

 

Sadly an account "in dispute" also now carries very limited protection, in that:

 

What if the lender does not comply with the request?

 

Your lender must provide you with the information within 12 working days of

receiving your request. After the 12 days are up, if the lender has not provided the information then the agreement is unenforceable until they do provide the information.

 

'Unenforceable' does not mean that your debt is wiped out. Any outstanding debt is still owed, but there are some consequences for the lender’s ability to enforce the debt.

If you do not make payments when your debt is 'unenforceable' it means that:

• Your lender cannot

- demand earlier payments of your debt

- threaten court action

- take possession of anything that you bought on credit, or

which you used as security when you took out the agreement.

• Your lender can

- request payment from you

- issue a default notice

- pass details of your default to a credit reference agency

- pass your information onto a debt collector

 

By all means read the consultation thoroughly, then go over what they've sent with a fine tooth comb, maybe they've not supplied varied T&C's for instance, if applicable, in which case it would remain in dispute until they did. In terms of the reconstructed agreement however..I believe they have (unfortunately) complied...but in my opinion their statement that they cannot find the actual agreement is of far more importance, even if they have TECHNICALLY complied with the CCA request, and should be sufficient to see off even the most persistant DCA until the debt becomes Stat Barred.

 

Elsa x

OFT 2010 Section 77 78 79 Compliance Guide[1].pdf

Edited July 21, 2010 by Undercover-Elsa
clarity

[adrianenler]

Hi Elsa

Thanks again ,I see what you mean ,its bit unfair but we all know what side the courts are on .O.k have I got this right ,because they cannot find the sign agreement they cannot enforce this in a court ,and I can withhold payments until they find it .

Would you recommend I send a letter of response re the reconstruction ,if yes could provide me with one ,this would be very much appreciate

Many thanks

Adrian