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Halifax card CCA return and Recontituted agreements


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sorry if this is in the wrong the place

Im new to site and hoping to get some advice.

 

Ive had a credit card for the last 15 years and last year got into difficulties with the recession,

I requested a copy of my signed agreement,

and they sent me a letter saying they didnt have it,

but nor did they need it to enforce the debt,

 

theyve sent me a reconstituted version saying that it is perfectly legal and they dont need my signature.

is this true,

can they enforce the debt with a signature or the original agreement?.

 

they have now passed the debt to a collection agency,

and am now stuck as to what to do next,

any help will be gratefully received,

as ive read quite a few threads and am even more confused.

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Hi

Welcome to CAG

I have moved you post to the correct section

 

Who is the original creditor?

Who is the DCA?

Has the account been sold to the DCA?

Have you received a Default Notice and/or Termination Notice.

 

The reconstitured agreement fullfils the CCA requirments, but they might have difficulty enforcing in court without a signiture on pre 2007 account.

Have you or are you still making any token payments towards the debt.

 

Is there any PPI on the account

What sort of balance are we talking

Is there unlawful charges within the balance outstanding

  • Haha 1
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thank you alfwithair, the original creditor is halifax, not sure about the dca, think it is either their inhouse one, or one they use all the time, apex something i think. i dont think it has been sold, i havent been told that is has, a default notice was issued when i was having difficulties, the debt is for 9,000, there is no ppi, i dont know about unlawful charges, not sure what they are, and i stopped paying token amounts until i had the agreement sent to me, which they have only just done, but a reconstituted version, not sure what to do next, do i resume paying, ive only missed two payments while i got this sorted. what do i do next. thanks again.

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Hi rusty22

 

Just some info on CCA Agreements once you've provided Alf with the information to advise.

 

Theres a Plain English guide Part 2 Page 29 onwards:-

 

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/OFT1272.pdf

 

Is the DCA Blair, Scott and Oliver, also known as BOS (Bank of Scotland)?

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Hi,

As they've admitted they've not got the original agreement, the alternative route is to tough it out as many of us do on here, as although they could try their hand in Court they would struggle without an original agreement, and of course you could capitulate and agree a repayment programme at any stage further down the line if it looked as if Court action was to be initiated.

It's totally up to you how to handle it. If they'd admitted that, I personally wouldn't pay them anything, but that's just my opinion.

I also think they've been rather misleading in their explanation of what having no CCA and providing a recon means.

CPUTR 2008 comes to mind. You are undoubtedly about to make a decision based upon their statement...

 

 

Elsa x

Edited by Undercover-Elsa

PLEASE NOTE... I AM MOST SORRY BUT I HAVE VERY LIMITED AVAILABILITY AT THE MOMENT DUE TO EXTREME PRESSURE OF WORK - IF YOU REQUIRE URGENT HELP ON YOUR THREAD AND ARE GETTING NO RESPONSE PLEASE HIT THE TRIANGLE FOR SITE TEAM ASSISTANCE. ELSA XXX

 

Please check out my BLOG for the quick guide to debt threats - it has all the info & letter template links you need to get started on your journey of TAKING CONTROL. :roll:

 

All opinions are my own based on research. I am not legally qualified, if in doubt please consult a legal expert.

Hope this has helped or made you smile. Keep your chin up, you're among friends now! Elsa xxx

Please click the *star* of any CAG member who has helped you .

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hi thanks for all the replies, the token payment was accepted by telephone, and I have been paying it for about 6 months when they decided to pass it on to the dca, they suspended the interest and charges on the account in that time.

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Will the brunt of the matter here rearly is do you pay them or not

A default will be already on your credit file, so you credit rating is already shot.

 

If you want to start making the token payment again, then only do so on YOUR terms at an amount YOU can afford.

Pay it only to Halifax on the condition they continue to suspend interest and charges.

 

The other option (posted previously) is pay them nothing.

They have said there is no signed agreement, so court involment is very unlikely, although they will tell you otherwise, they will tell you anything to get payment.

 

But be prepared for an onslaught of letters and phone calls if you choose to go down this route.

Once again Don't discuss anything on the phone with them, if they ring refuse to answer their stupid security questions, tell them in writing only and put the phone down, do this everytime they ring, they will soon get the drift.

 

Get everything in writing then you will have a paper trail of anything they agree or disagree to.

 

One final thing I will mention is that if you bank with Halifax or HBOS, I would get another account open sharpish, as they will and do (quite legally and without asking) clear your account out under the 'right to offset' rule and offset the funds towards the outstanding debt.

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thanks for all the replies, I dont bank with halifax, so theyve got no access to my money other than what i send them, to be honest I am still in a quandry, i previously tried to negotiate a settlement, but they ignored my letter, I was hoping to negotiate again using the unenforceability to my advantage, however have read a few more threads on reclaiming interest, is there anything I can do there before i start again?

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Hi Rusty,

I assume you mean reclaiming charges? Usually this is the route to go down if you have an enforceable agreement and want to reduce the debt.

If you think there may be a substantial number of penalty charges (overlimit fees/late payment fees, NOT contractual interest although interest can then be added to the amount claimed) then you'd need to send a Subject Access Request to get all the statements and tot up the charges.

 

Elsa x

PLEASE NOTE... I AM MOST SORRY BUT I HAVE VERY LIMITED AVAILABILITY AT THE MOMENT DUE TO EXTREME PRESSURE OF WORK - IF YOU REQUIRE URGENT HELP ON YOUR THREAD AND ARE GETTING NO RESPONSE PLEASE HIT THE TRIANGLE FOR SITE TEAM ASSISTANCE. ELSA XXX

 

Please check out my BLOG for the quick guide to debt threats - it has all the info & letter template links you need to get started on your journey of TAKING CONTROL. :roll:

 

All opinions are my own based on research. I am not legally qualified, if in doubt please consult a legal expert.

Hope this has helped or made you smile. Keep your chin up, you're among friends now! Elsa xxx

Please click the *star* of any CAG member who has helped you .

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PS: However it's not usually done to both cease paying due to an unenforceable agreement AND reclaim charges..that would be having your cake amd eating it, as by reclaiming you're acknowledging the debt.

PLEASE NOTE... I AM MOST SORRY BUT I HAVE VERY LIMITED AVAILABILITY AT THE MOMENT DUE TO EXTREME PRESSURE OF WORK - IF YOU REQUIRE URGENT HELP ON YOUR THREAD AND ARE GETTING NO RESPONSE PLEASE HIT THE TRIANGLE FOR SITE TEAM ASSISTANCE. ELSA XXX

 

Please check out my BLOG for the quick guide to debt threats - it has all the info & letter template links you need to get started on your journey of TAKING CONTROL. :roll:

 

All opinions are my own based on research. I am not legally qualified, if in doubt please consult a legal expert.

Hope this has helped or made you smile. Keep your chin up, you're among friends now! Elsa xxx

Please click the *star* of any CAG member who has helped you .

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read this....

Quote:

I should outline the salient provisions of the Consumer Credit Act 1974. Subject to exemptions, a regulated agreement is an agreement between an individual debtor and another person by which the latter

provides the former with a cash loan or other financial accommodation not exceeding a specified amount. Currently the

amount is £25,000. Section 61(1) sets out conditions which must be satisfied if a regulated agreement is to be treated as

properly executed. One of these conditions, in paragraph (a), is that the agreement must be in a prescribed form containing all

the prescribed terms. The prescribed terms are the amount of the credit or the credit limit, rate of interest (in some cases),

how the borrower is to discharge his obligations, and any power the creditor may have to vary what is payable: Consumer

Credit (Agreements) Regulations 1983, Schedule 6. The consequence of improper execution is that the agreement is not

enforceable against the debtor save by an order of the court: section 65(1). Section 127(1) provides what is to happen on an

application for an enforcement order under section 65. The court "shall dismiss" the application if, but only if, the court

considers it just to do so having regard to the prejudice caused to any person by the contravention in question and the degree

of culpability for it. The court may reduce the amount payable by the debtor so as to compensate him for prejudice suffered as a result of the contravention, or impose conditions, or suspend the operation of any term of the order or make consequential changes in the agreement or security.

 

29 The court's powers under section 127(1) are subject to significant qualification in two types of cases. The first type is

where section 61(1)(a),

[2004] 1 AC 816 Page 834

regarding signing of agreements, is not complied with. In such cases the court "shall not make" an enforcement order unless a

document, whether or not in the prescribed form, containing all the prescribed terms, was signed by the debtor: section 127

(3). Thus, signature of a document containing all the prescribed terms is an essential prerequisite to the court's power to make

an enforcement order. The second type of case concerns failure to comply with the duty to supply a copy of an executed or

unexecuted agreement pursuant to sections 62 and 63, or failure to comply with the duty to give notice of cancellation rights

in accordance with section 64(1). Here again, subject to one exception regarding sections 62 and 63, section 127(4) precludes

the court from making an enforcement order.

30 These restrictions on enforcement of a regulated agreement cannot be sidestepped by recourse to a pledge or other form of

security furnished in support of the debtor's obligations under the agreement. The security is not enforceable to a greater

extent than the loan: section 113. Where an application for an enforcement order is dismissed, except on technical grounds

only, or the court makes a declaration under section 142 that the agreement is not enforceable, any security provided in

relation to a regulated agreement "shall be treated as never having effect": section 106(a). Property lodged with the creditor

by way of security has to be returned by him "forthwith".

 

 

i think the judgment of Lord Nicholls of Birkenhead in Wilson v First County Trust Ltd (No 2) - [2004] 1 AC 816 above sets out the requirements of what is needed before a court can issue an enforcement order

STILL your choice

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thanks guys and girls for all your responses, I need to consider what I am going to do next, it all seems a bit daunting at the moment. must get my thinking hat on. but I really appreciate your advice, and am glad ive found this site.

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you need to be careful with these reconstituted agreement's unless there is something that stands out from memory these can be nothing like the original,in some cases it can take a considerable period of time for even one of these "true copies" to be sent.

 

you may find you were never given a copy of the agreement at the time,this leaves improperly executed and they were never entitled to enforce it without a court order.its never really been mentioned with all the requests why is this, when the above should apply.some may have simply been lost,however many were never given one at all.

 

all this is assuming the original was enforceable,however its seen on here recently solicitors presenting documents to courts' that are unverifiable if these were ever the original or simply the latest with a couple of statements and taken at face value.

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to be honest this is what worries me, they cannot produce the original, as ive said ive had the credit card for over 15 years, i cannot ever remember seeing an agreement, but how do i prove that!

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Carey v HSBC (2009) Judge Wakeman stated in his Judgement that if the agreement has been 'varied' i.e. if the interest rate has incresed, then the Creditor should provide a copy of the original agreement as well as Terms and Conditions at time of request.

 

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2009/3417.html&query=carey+and+v+and+hsbc&method=boolean

 

Summary at the bottom, point (4)

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to be honest this is what worries me, they cannot produce the original, as ive said ive had the credit card for over 15 years, i cannot ever remember seeing an agreement, but how do i prove that!

 

You don't have to . For the creditor to make a case he has to prove you did sign an agreement.

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Yep, totally agree whoever brings the court action has the onus of proof.

PLEASE NOTE... I AM MOST SORRY BUT I HAVE VERY LIMITED AVAILABILITY AT THE MOMENT DUE TO EXTREME PRESSURE OF WORK - IF YOU REQUIRE URGENT HELP ON YOUR THREAD AND ARE GETTING NO RESPONSE PLEASE HIT THE TRIANGLE FOR SITE TEAM ASSISTANCE. ELSA XXX

 

Please check out my BLOG for the quick guide to debt threats - it has all the info & letter template links you need to get started on your journey of TAKING CONTROL. :roll:

 

All opinions are my own based on research. I am not legally qualified, if in doubt please consult a legal expert.

Hope this has helped or made you smile. Keep your chin up, you're among friends now! Elsa xxx

Please click the *star* of any CAG member who has helped you .

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thanks very much everyone all your replies have been extremely helpful, and I will let you know how I get on.

 

Put quite simply, for a creditor to enforce a debt through the court he has to prove it is more likely than not that you signed a document that contained (i) a term setting the credit limit or amount of credit, (ii) the interest rate on that credit and (iii) how you are to repay the amount outstanding.

 

Without a copy of the signed agreement how are they going to demonstrate that if you affirm you never saw one let alone signed one??

 

Let's face it, you MUST have made an application, but it is unlikely it constituted a valid credit agreement as it was and in any case they admit they do not have a copy of even that.

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Put quite simply, for a creditor to enforce a debt through the court he has to prove it is more likely than not that you signed a document that contained (i) a term setting the credit limit or amount of credit, (ii) the interest rate on that credit and (iii) how you are to repay the amount outstanding.

 

Without a copy of the signed agreement how are they going to demonstrate that if you affirm you never saw one let alone signed one??

 

Let's face it, you MUST have made an application, but it is unlikely it constituted a valid credit agreement as it was and in any case they admit they do not have a copy of even that.

 

 

Agree with everything you say Basa but the caveat to that is the fact the judiciary at present are looking at any way they can to stop the "dont/cant-payers" hence a simple signed statement by a creditor that there was a compliant agreement may suffice when they need to just convince a judge just 51% that they are right. An appealable decision yes but invariably most people on here dont have the finances to appeal :-(

 

I would agree with undercover-Elsa's summing up in full including looking at that statement under CPUTR2008.

 

S.

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Agree with everything you say Basa but the caveat to that is the fact the judiciary at present are looking at any way they can to stop the "dont/cant-payers" hence a simple signed statement by a creditor that there was a compliant agreement may suffice when they need to just convince a judge just 51% that they are right. An appealable decision yes but invariably most people on here dont have the finances to appeal :-(

 

I would agree with undercover-Elsa's summing up in full including looking at that statement under CPUTR2008.

 

S.

 

I know only too well what you say. I am facing such an argument in a forthcoming case which I instigated against a creditor. The creditor in his defence has intimated at a 'reconstituted' agreement and I am writing my WS and arguments to discredit that authority. The judge at the CMC has insisted on original documents at the hearing, so that might help. There are other arguments I don't want to give away in open forum.

 

The truth is in my case there definitely was NO signed agreement of any description, not even a credit application so we will see what transpires. The hearing is not until March though.

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As basa48 says THEY must provide the original if they proceed to court....without it they dont have a leg to stand on

 

BUT and this is important IF you take them to court the recon is valid and you loose full stop..

So until they provide the original copy unenforceable...now the ball is in you court,ie token payments/no payments full and final offer etc

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As basa48 says THEY must provide the original if they proceed to court....without it they dont have a leg to stand on

 

BUT and this is important IF you take them to court the recon is valid and you loose full stop..

So until they provide the original copy unenforceable...now the ball is in you court,ie token payments/no payments full and final offer etc

 

I think you have mis-read my post.

 

I am taking the creditor to court. It is incumbent on me to prove there was no valid agreement.

 

I take issue with your second sentence. Why if I sue and they introduce a recon do I suddenly loose? It still won't pass s60 muster.

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I was in a similar situation with Barclays were they stated "they don't need the agreement and furthermore didn't have it". Trading Standards pulled them up over this as the card was taken out pre April 2007 and a " True Signed Copy" was required if they took me to court. Barclays backed down and wiped the debt out, although TS still passed ALL details through to the Home Authorities as a valid complaint.

 

Regards

PB68.

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