Halifax cc Recon ??

[maxedout]

Hi all

i wonder if any one could help as i have read a lot about unenforcable cca"s and reconstituted agreements and read some judgements. Now the OFT have come out with what they think they should contain, so now im not at all sure and wondered if someone could clarify things.

I requested a copy of my cca under section 78 and have also requested a sar to Halifax.

I have recived a copy of my signed application a statement of account and what they call a reconstituted terms and conditions.

There is no signature on the recon terms and conditions.

On the application it states apr @ 21.1% on the recon it states standard variable per annum compounded @29.95. or 26.48 simple per annum.

On the recon default charges are £12.00.

On the application min cash advance charge £1.50 on the recon it staes £3.00

The recon also states online service security .Our on line service is secure.

The application is dated 1994 i would not have thought the Halifax had online accounts back as far as this.

The point im making is they are sayiny this recon is fully enforcable and they have satisfied their obligation.

I dont think they have and dont think this is at all enforcable.

Could someone please advise many thanks Maxedout

[rebel11]

Hi maxedout

 

It sounds like it's unenforceable. It probably is, a lot has happened where recent cases have thrown up a lot of doubt about unenforceable agreements.

In Carey v Hsbc (2009) the judge stated that if the agreement has been vaired, i.e. the interest rate has increased, then the creditor must provide

a copy of the Original Agreement as well as the T & C's.

 

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2009/3417.html

 

Theres a summary at the bottom, point (4).

 

Halifax will know if it's unenforceable, but they won't tell you.

[maxedout]

Thanks Rebel 11 if i post up what they sent would some one take a look please thanks Maxedout

[rhos123]

Thanks Rebel 11 if i post up what they sent would some one take a look please thanks Maxedout

 

hi, please post the recon up remove all personal details, ref numbers or barcodes, as the trolls from the smelifax look in on these posts.

[road warrior]

Hi I asked intelligent finance/halifax for a copy of my CCA they sent a reconstructed copy their copy was not signed by them which I think makes it unenforceable. More importantly I found my copy and it is unenforceable and it is not the same they have quite brazenly added things that are not in my original. Is this fraud is it an attempt to pervert the course of justice surely they have commited a crime and they should be made to pay for it. Any suggestions.

[maxedout]

Hi they sent this and a copy of resent terms and conditions calling them reconstituted terms and conditions

many thanks Maxedout.

[maxedout]

Any one please

[rhos123]

hi, the scan is to small to read , upload via photobucket, or tiny pic.com them copy and paste the img code back here.

[maxedout]

[maxedout]

Hi sorry to butt in i just had a default notice dated 2nd november on the letter and it says iv got untill the 16th november to rectify is this correct if not where do i stand many thanks Maxedout

[Bazooka Boo]

DN is defective with the dates you have supplied.

[maxedout]

If the default notice is defective what are the implications of this? Thanks maxedout

[Bazooka Boo]

If they then terminate the account you should accept their unlawful resciscion and pay them the arrears, but you must acept their unlawful resciscion.

[maxedout]

Bazooka Boo thanks for the help, letter date 2nd november and they state arrears must be paid befor 16th november.Isnt that 14 days tho.I cant see anywhere where it states you have 14 clear days thanks maxedout.

[dx100uk]

2 working days for 1st class

4 working days for 2nd class

 

then 14 calancer days from then.

 

its defective

 

dx

[maxedout]

Thanks dx, i dont doubt you for one min but would you be able to point me to where this is stated. So if they close my account after the 16th i should thank them and just pay the arrears. Is there some sort of route i should be following not to mess this up and would it wash in court if it came to that? thanks maxedout

[dx100uk]

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

2. Under the Interpretation Act 1978 Section 7, it states:

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

2. Practice Direction

Service of Documents - First and Second Class Mail.

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for

serving of documents :-

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default

Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

6. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which

states:

Section 87. Need for Default Notice

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor

or hirer of a regulated Agreement -

(a) to terminate the Agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

(e) to enforce any security.

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

Section 88. Contents and effect of Default Notice

(1) The Default Notice must be in the prescribed form…

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice.

The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

 

dx

[maxedout]

That rocks thanks dx so basicly they are shafted as of now ?. i will prob need bit more help further down the line if thats ok . thanks maxedout

Edited November 9, 2010 by maxedout

[maxedout]

When a judge rules on a case such as the above ( woodchester lease etc) .like the duff DN if there is a hearing that is much the same and a previous judgement is quoted does the judge have to take it into consideration or does he have to rule the same.Thanks maxedout

[maxedout]

Hi again. recived letter this morning dated 16th november saying as i didnt pay the amount due by the date shown on the notice they have ended my credit agreement, and are going to transfer my account to a debt recovery agency. Default notice dated 2nd november, 16th november to rectify.14 days but no time for posting.Even tho they ended the agreement on the last day of the default notice have the terminated unlawfuly because i was not given full 14 days and if i had been should they have waited until the 17th to terminate as the 16th was one of the 14 days.If any one knows what i mean lol and what should i do please . maxedout

[dx100uk]

did you write the advised letter?

 

if not do so

 

arrears only now me thinks

 

dx

[maxedout]

thanks DX what advised letter?

[dx100uk]

post 60?

 

dx

[maxedout]

Thanks DX . Any one with any ideas about questions in post 61 thanks maxedout

[Bazooka Boo]

Yes your correct a default notice MUST give you 14 clear days in which to rectify the account, normally the arrears owing, not the full balance, AND it isn't satisfactory to simply state 14 days from the date of theis letter or, 14 days from receipt, it MUST state an actuall date dd/mm/yyyy.

 

Again if what they are asking for to rectify the account is more than the arrears, ie the full balance, this is also incorrect, once you have received a faulty DN then you should wait until they either issue a termination letter/notice OR demand full payment on the account, then you can accept their unlawful repudiation whereby you will onl;y be liable for the arrears.