SD from lowells etc - old halifax card, terminated before DN expiry - help

[r&b]

hi indebt,

im not sure the account is in dispute as to have complied with ur s.78 request, the agreement does not need to be enforceable to comply but does need to be executable and i think new t&cs cover that. i stand to be corrected of course.

please dont accept any phone calls, they can tell u all sorts if ur not recording them. tell them u will communicate in writing only and put the ph down. after a few days they get the meassge. the letter spam suggested has already told them that if u sent it.

id be very wary of sending them anything of a financial nature myself but i can see wot spam is saying as it all depends on how u value ur credit rating and wot u perceive the future to hold. ie whether u r gonna pursue the unenforceable issue to the point of court? has to be ur call as he says...

Edited June 16, 2009 by r&b
deleted irrelevent section

[Indebt1]

Hi Guys

 

Thanks for the help, you have lost me though:

i sent through a letter stating the account was in dispute they then sent the dubious cca since then i have sent them nothing as yet.

what should i actually send or say now to tell them that its still disputed? and do i have a leg to stand on?

sorry if i sound a bit dim here but belive me its not by choice im doing this and i need to get out of trouble so bad, i have four kids:(

[Spamalot]

First of all... Don't wory... Easier said than done but it's only money.

 

As you haven't been paying you have one or two options at the moment.

 

You can either continue to withold payment and they will eventually default you and this will probably be recorded on your credit file.

 

Or, you can contact them informing them that you are in financial difficulties and would like to come to an arrangement with them to reduce payments and freeze interest/ charges.

 

(template letters and budget sheets in forum and on Debtline)

 

If the second option turns out to be long term then in all likelihood they will default you and terminate the agreement.

 

All the time this is going on you can still investigate the validity of the CA..

 

It's entirely up to you how you play this.

 

Spam.

[r&b]

i agree with spam.

i think however, u shud send them this letter that spam pointed u to in an earlier post adding somewhere that there are children in the house under the age of 12:

http://www.consumerforums.com/resources/templates-library/86-debt-collectors/590-letter-used-when-a-dca-threatens-a-doorstep-visit-.html

[steven4064]

Is the CCA enforcable or not?

See post #64

[babydoll0141917]

Indebt

 

No one really knows if these CCAs are enforcable..The only way we would know is if it went to court and halifax had to produce the original..Any one can copy and paste what ever they like on the back of a form and i think that with most of these halifax CCAs the Reverse wasnt on the reverse when we signed..you can either

1.. wait and see if they issue then defend

2..sort out a payment programme with them

3 ...Write to them and point out all the issus you have with the CCA then see what they say

 

My CCA is the same as ures ...ive not paid nothing in 16 mths...gone from 1 dca to another..Still no court..They will no doubt pass it on to a dca and Default you at least then the intrest and late charges will stop..and no dout the DN will be invalid

[steven4064]

The CCA 1974 is quite clear that an agreement (pre CCA 2006 anyway) is only enforceable if it has the debtor's signature and the prescribed terms in the same document.

 

The question then is, are the two bits of papaer part of the same document. I am sure that if a court was asked this question it would fall back on a balance of probabilities arguement and decide depending on whether the two bits were more or less likely to be part of the same document.

 

I would have thought that the fact the two bits of paper are not the same size, were different layouts (single colun versus 3 columns), had different typefaces and different code numbers all would tend to the conclusion that it is very unlikely that these two pages are part of the same document. And if not, then it is unenforceable.

[Indebt1]

Card Services

Halifax

Pitreavie Business Park

Dunfermline

Fife

KY99 4BS

 

 

FORMAL NOTICE - ACCOUNT IN DISPUTEAccount/Reference NumberYour Ref:

Thank you for your recent reply (dated) to my request under section 77-79 of the Consumer Credit Act 1974

 

I note quite suprisingly that you have replied to the above by sending a Credit agreement with the t&c's copied and pasted onto the back.

I must inform you that this is not sufficient to comply with my request and that your company is in default under the act You have failed to respond to my legal request to supply me a true copy of the original executed Consumer Credit Agreement for the above account.

 

In my letter of the ***** I made a formal request for a copy of the signed, executed credit agreement for the above account under Sections 77-79 of the Consumer Credit Act 1974.

The document that you are obliged to send me is a true copy of the executed agreement that contains all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document also

You have failed to comply with my request, and as such the account is still disputed as per my letter dated ****To clarify, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;[/font]

As you will know section 180(1) (b) authorizes, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:[/font]

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorized by regulations

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557

 

(2) There may be omitted from any such copy-

a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned provison.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

You may not demand any payment on the account, nor am I obliged to offer any payment to you

You may not add further interest or any charges to the account.

You may not pass the account to a third party

You may not register any information in respect of the account with any credit reference agency.

You may not issue a default notice related to the account.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit

 

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Yours faithfully

[Indebt1]

Steven/Spam and all the angels on this site.

What do you think of the above letter? chopped and changed to suit.

[babydoll0141917]

Looks great to me

[r&b]

indebt, for the account to be in dispute, they must have NOT complied with ur request under s.78 cca1974. the difference here is that to conform they can send u an EXECUTED agreement which is very different from an ENFORCEABLE agreement.

have a read thru stevens thread here and u will see that a copy of the current t&cs does comply:

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

[Indebt1]

Hi r&b

I am going on the true copy argument, surley it is not considered complied with if you copy and paste bits onto it?

the t&c was copied onto the back and was almost detainly not there originally so therefore it would not be enforcable?

is your argument that the letter should use a different wording then executed?

forgive my ignorance its just i am finding it difficult to understand stevens thread, intructions were never my thing.

[Spamalot]

Hi indebt...sorry to but in... I'm sure R&B will kick me later but if you look at this thread.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

 

It tells you that basically as long as they send you something like your original they have 'complied' with your request... therefore if they have complied you can't dispute the account for 'Non compliability'

 

Does that make sense or have I confused you even more?

[Indebt1]

Hey Spam

 

I understand i guess:mad:.

So this makes my options very limited here.

Ignore and wait for court then argue if its enforceable?

Tell them Hey Mr Halifax i have major financial difficulties and looking at the agreement it doesnt seem enforcerable so lets make a deal?

worth a try you think?

[Spamalot]

Hi indebt.

1.Have you sent a 'SAR' to the halifax requesting all the data they hold on you?

2. If there's unfair charges during the 'agreement' you would be able to claim them and reduce the debt.

3. Is the debt above or below the £5000 mark?

4. would you be happy just paying less each month and interest frozen ?

5. do you have more than one creditor that you are paying?

6. would you be comfortable taking the matter to court or would you prefer not to?

 

I know the questions are in a bit of a random order but answering them might help you decide where to go next.

 

Spam.

[Indebt1]

1.no only the CCA and dispute letter

 

2.i have been paying on time since day one no late fees ect...

 

3. £7.5k

 

4.yes, how long would that last though?

 

5.yes cc debt is in excess of 80k

 

6.if i thought i had a good chance yes.

 

your help is much appriciated.

[Spamalot]

OK,

The debt in itself to Halifax would be considered 'Fastrack' in court as it is over £5000 so it could prove VERY expensive to you if you went to court and lost.

If you are happy to just reduce your monthly outlay with interest frozen then a payment arrangement with Halifax, I think, would be your best option.

Are your other creditors 'Under arrangement' or are you keeping up payments with them ok?

[Spamalot]

Further..

 

IF you choose to make the arrangement with Halifax, after a while they will default you and palm you off onto a DCA.. Probably Blair Oliver and Scott.

They will continually review your circumstances and probably either get you to pay more or give you a setlement figure but they do tend to freeze interest and the debt goes down (this is just MY experience...not Gospel)

All they really want is their money back at the end of the day:rolleyes:

 

While this is going on there is nothing stopping you getting a court order for Halifax to produce the original document.... but that's another story.

[Indebt1]

MBNA and Barclaycard have failed to provide any agreement so accounts are in dispute and not being paid:

BC 3700 MBNA 6500

i have more cards which i am going to send out CCA letters shortly alot of them are realy old so i will wait and see.

i also have an MBNA loan which i need to request the agreement for.

[r&b]

hi indebt,

seems to me that if u can facilitate all of these debts then fine. if however u feel at some stage u are not going to be able to and u will be in default then depending on ur situation (assets), there is often not much to lose in attacking the enforceability issues (can be cost issues but they cant take wot u havent got so often they get added to the debt).

u dont seem entirely sure about this yet so as there is no hurry, id suggest u take ur foot off the gas, have a really good read thru the site and see how people have/are handling their issues and see which way u want to go. rushing into smth now, that ur not completely happy with will only result in a poor outcome for u i would suggest.

once u r happy with a direction then get behind it 100% and follow it thru.

[Spamalot]

Hi indebt,

 

Just to remind you that Fingers 60 actually has his/her original agreement and a copy of the one that the Halifax has sent him/her which has the T&C copy and pasted and he/she is currently awaiting feedback from his/her solicitor.

 

http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/184068-halifax-credit-card-cca.html

 

It may well be worth subscribing to that thread if you haven't already to see the outcome. ( sorry fingers for him/herring you )

 

Another point which the more legal eagles may be able to advise on is

 

Does the copy of the agreement sent out to the customer when the account is opened have to be identical to the one that is kept by the creditor?

I.e could the one they keep be enforceable with prescribed terms etc on the same doc, but the one they mail to the customer be one sided with T&C's as a seperate doc?

 

Just playing devils advocate and inviting discussion on the point.

 

Spam.

[Fingers60]

Hi indebt,

 

Just to remind you that Fingers 60 actually has his/her original agreement and a copy of the one that the Halifax has sent him/her which has the T&C copy and pasted and he/she is currently awaiting feedback from his/her solicitor.

 

http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/184068-halifax-credit-card-cca.html

 

It may well be worth subscribing to that thread if you haven't already to see the outcome. ( sorry fingers for him/herring you )

 

Another point which the more legal eagles may be able to advise on is

 

Does the copy of the agreement sent out to the customer when the account is opened have to be identical to the one that is kept by the creditor?

I.e could the one they keep be enforceable with prescribed terms etc on the same doc, but the one they mail to the customer be one sided with T&C's as a seperate doc?

 

Just playing devils advocate and inviting discussion on the point.

 

Spam.

 

Hi Indebt

 

Yes Spam is right we are in the same boat with Halifax with my T & Cs pasted on the back. And yes i had confirmation 2 days ago that I should have an answer by the end of the week but this may be end of next week. Believe me when i say that advice will be coming from someone very much in the know and I think the advice will really help you.

I am too in the samelevel of debt as you so we are all very much in the same boat here.

 

Yes I agree with spam, halifax may have covered off their obligations with what they have send you under section 77-79 etc , however their agrement may be "improperly exceuted " and therefore unenforceable.

Lets see what my legal guy says and i will post up the advice i promise within 10 days.

 

Keep the faith mate

 

Fingers

[Indebt1]

Thanks guys.

I had them on the phone tonight they offered to reduce the monthly payments for twelve months to 1% of the debt per month meaning 81 per month.

he was desperate that i give him the first payment tonight i refused.

i also requested a payment agreement in writing he said i would have to make a token payment of at least the 1st one before they agree to that.

i refused to be pressured and they agreed to wait for 10 days, so Fingers i am praying for you!!

[Spamalot]

Well done Indebt....don't let them bully you....you may have the upper hand yet.

 

Spam.

[Fingers60]

Thanks guys.

I had them on the phone tonight they offered to reduce the monthly payments for twelve months to 1% of the debt per month meaning 81 per month.

he was desperate that i give him the first payment tonight i refused.

i also requested a payment agreement in writing he said i would have to make a token payment of at least the 1st one before they agree to that.

i refused to be pressured and they agreed to wait for 10 days, so Fingers i am praying for you!!

 

im not praying, just relying on case law and good advice !

 

well ok...im praying myself a little also