HBOS CCA Request - Reconstituted Copy s78 Compliant??

[fletch70]

In a nut shell yes.

I can not say if the recon agreement is correct without seeing everything but lets assume for now that it is.

 

I would think about sending this..have a read

Dear Sirs

Account No: XXXXXXXX

​On XX/XX/XXXX I wrote requesting a true copy of the executed credit agreement for the above account. In response to this request I was supplied an application form, a copy of which is attached, which did not comply with the requirements of the Consumer Credit Act 1974 (CCA1974). I would like a copy of the actual agreement. I appreciate that as per Carey v HSBC, a reconstituted agreement can be provided, however I am disputing the actual existence of such an original which means the Carey case is irrelevant as without one the account would still be deemed unenforceable. Carey only went to prove that if you could not provide an original, for whatever reason, but had proof on your systems/records that certain conditions were in place at that time then a recon could be submitted only in-so-far as to satisfy your s.78 request. If you do not have an original then a recon cannot be produced.*

The document you sent, purporting to be a credit agreement, does not contain all of the prescribed terms as required by section 60(1) Consumer Credit Act 1974, plus you did send an application form. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say, all of the required terms are not present in this document. Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states:*

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

*

 

You are setting out your position that no such agreement exists .

Depending on the balance will probably depend on what they do next.

 

I would then also stop payment

[Conniff]

Be careful. In one of the cases taken to court with no definite cca, the judge said that as you had been making regular payments the cca must have existed and upheld the dca.

[fletch70]

While I agree I think you are referring to Arrow Global v Frost . In that case the defendant gave such contradictory evidence that the judge felt he was unable to believe what she was saying. her husband admitted he had not been listening to her in court so couldn't confirm or deny.

 

This shouldn't be a case of stop paying and do nothing, just a case of stop paying and take each step at a time

[DJM10118]

Thanks Fletch. Had a quick read of the letter. I have doctored it slightly as I think some of the wording isn't quite right for my situation. what do you think?

 

 

Account No: XXXXXXXX

​On XX/XX/XXXX I wrote requesting a true copy of the executed credit agreement for the above account. In response to this request I was supplied a reconstituted copy of which is attached, which does not comply with my request under s60/61

I would like a copy of the actual agreement. I appreciate that as per Carey v HSBC, a reconstituted agreement can be provided, however I am disputing the actual existence of such an original which means the Carey case is irrelevant as without one the account would still be deemed unenforceable. Carey only went to prove that if you could not provide an original, for whatever reason, but had proof on your systems/records that certain conditions were in place at that time then a reconstituted could be submitted only in-so-far as to satisfy your s.78 request. If you do not have an original then a reconstituted copy cannot be produced.

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

[fletch70]

I think that looks good. I would add the "I do not acknowledge any debt " line in it somewhere just to cover your backside.

 

As said before I am not saying this is done and dusted , they might press you for a bit or sell it on. If they sell it one basically send an adjusted version of the same letter i.e On xxxxxx I asked HBOS blah blah

 

If you get anything that looks like or says it is a letter before action or letter of claim do not ignore it, equally if you were to get claim forms from Northanmpton do not ignore them either

 

I am just trying to cover all bases here , all the what ifs .

 

If you can possibly afford it, save the £60 and then if it gets heavy you may have some money to offer a full and final , especially if it has been sold on

 

Hope that helps

[Conniff]

I would add the "I do not acknowledge any debt " line in it somewhere just to cover your backside.

 

 

 

LOL I think that should be 'back', not backside lol

[fletch70]

LOL I think that should be 'back', not backside lol

 

Depends where you live lol

Could have said to cover your arse!

 

Back is probably better though

[DJM10118]

Thanks for your help so far. I think I will give it a few days as the statutory 12+2 days doesn't end while later this week, something may turn up yet but I doubt it! Could you clarify the end of the time period for response if letters were received 27/01? I have counted 14 working days since the 27th so end date of 13th Feb?

 

 

I will but together a final draft of the letter now I have a better understanding of the various sections of CCA 1974 and how they apply. I will post it later this week if you could have a quick read before I send it?

 

 

DJ

[fletch70]

DJM

Are you one of them funny Yorkshire sods

end while later this week,

 

Time scale is actually 12+2 the 2 being for delivery so I make it 12th that the time is up.

 

Having said that there is no penalty for not sending it in time. One of mine took 18 months to come although I believe it to be a forgery for various reasons.

 

BTW my OH is one of those funny Yorkshire sods whereas I come from the right side of the Pennines

[DJM10118]

ey up! I'm from t'yorkshire mate but the right side IMO! Its embarrassing you can tell from my posts and writing.

 

 

I have sent a total of six CCA request off so far and only heard back from two, one been HBOS as discussed above and the other is BOS (Esure) which looks to comply with s.60 and s.61 as far as I can see.

 

 

I appreciate that there is no time limit however I want to ensure that I have allowed the statutory 12+2 before I send a letter explaining that I am stopping the payments for non compliance etc. I may as well send them all together at the end of the week.

 

 

I will put any held payments into a separate bank until which point they come up with the correct documents. Maybe they won't and I can use the funds to pay F&F on the legal ones.

[fletch70]

I only noticed cos you used the word while as in 10 while 6. The first time I heard it was from a boss of mine who lived in Wakefield.

 

The problem with UE is that there are so many ways an account can be UE . Could be from the CCA request and not supplying all the documents, it could be that the agreement itself is flawed, it could be that they can not find an agreement and you can show you didn't sign one. Then it could be down to a bad DN . Now a bad DN may not on the day be enough for a judge to rule in your favour but if they have terminated on the back of it and then sold it on it does cause them problems.

 

If the sums are relatively small they may not bother chasing as hard, even for larger sums if it has been sold for 10% say again it may not be worth their while.

 

Day at a time, step by step . I am finding that I get a flurry of letters , see that DCA off , goes quiet for a bit then repeats. Currently the only ones being a right royal pain in the arse are RBS with who I have two credit cards. They ignore questions even as part of a complaint and insist on signatures which I will not give. I have asked them times if they hold an original signed agreement and they just ignore it

 

Keep up the good work

[DJM10118]

"don't end while later int week" that's proper Yorkshire speak!

 

 

I suppose my main concern is that as you suggested some of the amounts are starting to get below the £1000 mark now and would be paid in the next 12-18 months at the current rate. My credit report is looking shocking as at least four of the six accounts have been defaulted against. Some of the defaults are going to start coming off early next year i.e. 6 years so I don't really want to start making them worse and have another 6 years of bad credit history.

 

 

If a oc cannot come up with the documents under s60/61 would the account go into dispute? Could they put additional bad markers against that account for non-payment etc. TBH they are all quite bad anyway so not sure it would make any difference in the short term.

[fletch70]

Ok

Indeed it does not end until later in the week

 

Once the account is defaulted it comes off your credit file after 6 years come what may. If they were then to get a CCJ that would be another 6 years so you really don't want a ccj .I am told if you settle the defaulted account it really doesn't make much difference to your credit score.

 

You think that 2 of the accounts have not been defaulted , it could be that they have and fallen off already or it could be that the lender doesn't report to the CRA's.To be honest they should be defaulting you within 3-6 months of the relationship breaking down and an arrangement to pay is just that IMHO . Yo may have an arguement to have the default backdated

 

If you have an AR marker then that will still show up to 6 years after the account is settled i believe but stand to be corrected

 

Once defaulted you can not be defaulted again.

 

I am not sure how much you are paying overall but if you want to clear them you could make full and final offers on them of say 15% of the value . If you stop paying for a few months they will be more likely to accept.

 

So I would save the money and if and when things get hairy offer them settlements . If they don't get hairy just leave em alone

[DJM10118]

The two accounts in question were originally MBNA and passed to Idem around Sept 2012. The accounts appear on all 3 of my credit files and show a green status since Idem took over in Sept 2012, so apparently up to date. I received a letter from MBNA around Oct/Nov 2008 discussing min payments to prevent default been registered.

 

 

I suppose at the time I assumed paying more than required to avoid the default would be the best course of action although now I'm not so sure. Looking at the Noddle report I have an "AA" (Nov 08) registered against one account and an "AA" (Jan 09) on the other. If they had have been defaulted around this time then they would be almost 6 years old

 

 

Do you think I have a chance of getting these back dated?

[fletch70]

It seems that MBNA have a habit of doing this.

Maybe someone with more experience of defaults could help, not really my thing, I just take them and think what's one more!

 

As they are showing now as up to date they would probably be the two that you would want to concentrate on full and finals however if they are large amounts and they are unenforceable would that be throwing good money away.

 

What are your aims for the next few years, do you want more credit or is it just the thought of a clean credit file

[DJM10118]

Both MBNA accounts are down to approx. £1000ea and paying £50ea p/m. I'm not too bothered for any credit at the moment but I would like to do what I can to make it look somewhat better. I think it's just for piece of mind to get rid of them all and certainly won't be doing it again! Unfortunately it was out of my hands due to reduce hours at work and just I had just bought a new house. Paid approx £20k so far of the original debt.

 

 

I will start a couple of threads re defaults and CRA when I get onto it. Once I have sorted the CCA requests then I will move on to defaults etc. The report isn't going to change overnight so I can do this over time. I did contact IDEM services and they said I would have to but an offer in. They did suggested that as the accounts were never defaulted and If I opt for an F&F then this would have a negative affect on my credit report.

[BRIGADIER2JCS]

I think you need to check a mainstream credit reference agency Noddle may no have accurate up to date information.

 

 

You need to be looking at actual default dates on the CRA files, if there has been long term use of arrangement to pay markers or late payment markers instead of registering

defaults it can be challenged as unfair.

 

 

Have you sent a SAR to MBNA?

[DJM10118]

Hi Brigadier,

 

 

No I haven't sent a SAR yet to MBNA as I was working on my CCA's for this month. What would that tell me over and above the credit report for the £10 fee? It looks like I entered a AP on the 28th Feb 2009 as I have the letter from MBNA. This seems to match with the "AR" markers on my Noddle report, the Equifax report doesn't go that far back to see. The two accounts are run identical since early 2009 i.e payment amounts and dates.

 

 

Because the accounts are not defaulted would this situation be better if I requested a default from Feb 2009 therefore to end date of Feb 2015? I have others ending just after this date so wouldn't make the situation any worse!

 

 

Would you say that once you enter into an arrangement to pay then the account should be defaulted from that date? I have another two Lloyds accounts where the default was applied 11 months after the arrangement to pay was agreed, unfair?

[BRIGADIER2JCS]

I would suggest getting the SAR off to MBNA as this will provide all the history of the account and may well indicate when a default became appropriate given the 'management' of the account.

 

 

APs may be inappropriate over an extended period as it places the individual at a disadvantage compared to a debtor who has made no effort to repay their debt.

 

 

My advice is SAR now.

[DJM10118]

Cheers Brigadier I will get them arranged. I have a few accounts with HBOS,BOS, Llloyds would these all come under the same banner for a SAR?

[fletch70]

Are they just 1 Arrangement marke r followed by normal green up to date markers. That is how I understood your earlier post

[BRIGADIER2JCS]

One SAR per Creditor covers all accounts.

[DJM10118]

Cheers Brigadier

 

 

Fletch. Well they all seem to differ slightly

 

 

Account 1

 

 

Noddle First AA marker Nov 2008 - AR and DM until May 2013 then OK markers to present

Equifax First AP marker Feb 2010 - Run AP until Oct 2012 then OK marker to present

Experian All green 0 markers for the last 24 months - no negative markers that I can see

 

 

Account 2

 

 

Noddle First AA marker Jan 2009 - AR and DM until May 2013 then OK markers to present

Equifax First AP marker Feb 2010 - Run AP until Nov 2011 then OK marker to present

Experian All green 0 markers for the last 24 months

 

 

Confused??

[fletch70]

Confused indeed.

 

If it is possible to get the default set to 2009 ish that would probably be better but that really isn't my area

 

My personal thoughts would be to deal with the others first , you know "how do you eat an elephant?" One bite at a time.

 

Not really sure what else to say. It is always easy for someone to sit and say do x y z when it is not their money, credit file etc

[DJM10118]

Thanks for your help so far. I will deal with the CCA non compliance first then worry about the default dates etc.

 

 

My main concern are the two Lloyds accounts as the last default doesn't come off until Nov 2016. According to my report I entered into an AR in Nov 2008 so surely the default would need to be around this date not Nov 2010 as it currently stands? 2 years before issuing a default???

 

 

I will write a letter of complaint to Lloyds on this one when I send my other CCA letters at the end of the week. I will see what response comes back from Lloyds on this matter and then look into the MBNA. Ideally I would like them all removed in 2015 at some point as I believe this is 6 years from when I entered an AR with my OC. In other threads the complaints commissioner suggested that "consumers should be of a disadvantage for agreeing to pay their debts compared to others who have made no attempt to pay these back"

 

 

On one last point. I have received a response from BOS (Esure) which is the actual signed CCA agreement and I believe it conforms to S60/61. They haven't sent any other paperwork under the s.78 request. Would there be any point delaying the payment because of this as it will be very easy to send a recon version to me? Would I just be delaying the inevitable?