HBOS CCA Request - Reconstituted Copy s78 Compliant??

[DJM10118]

Cheers Dx & Fletch

 

 

I will certainly SAR the Bank of Scotland (HBOS & Lloyds) as I'm pretty sure they had quite a lot of money off me when I got into financial difficulty back in 2009. I do remember going into Halifax pleading with them stop adding the charges to allow me to get back into the black for one month. This would then have stop the snowball effect on my account due to charges etc. Halifax and Lloyds are one of the worst banks I know off.

 

 

I have sent a letter today regarding getting the default dates on my two Lloyds accounts backdated to when the AR was arranged not 2 years later. We will have to see what happens on that. I will send the SAR requests at the weekend

 

 

What about the companies who haven't responded at all with by s78 request? Should I send another letter to chase?

 

 

Fletch - Why look for the original copy if its not required to enforce the debt? I'm still finding it hard to understand how these S78, S60/61 work!! How did your become UE? Was there an error in the PT? My recon documents are not exactly the same but very similar in the key information the mention. Yes the apr is different from the old to the new but they aren't they entitled to change the APR when they want? There is no mention of values of charges on the old but the new is £12 as you pointed out above.

 

 

Non of the accounts were secured loans so I guess it may be difficult to get my house although I don't know the lengths they may go to. And I'm very poor!!

[DJM10118]

Sorry for my poor English in my last post but its been a long day!!

 

 

"Yes the apr is different from the old to the new but aren't they entitled to change the APR when they want? There is no mention of values of charges on the old but the new is £12 as you pointed out above"

[fletch70]

Hi

 

Ok so to enforce the agreement they need to demonstrate on the balance of probabilities i.e more likely than not that you did sign an agreement that fulfilled all the required legislation. Now the easiest way of doing that is to produce a copy or the original that does have all that. It is rare that banks will put their hands up and say ok guv you have us .

As it happens I have an application form for a BOS Mastercard from 1993. IT is clearly my writing with my signature , my employment details etc. Even got my then wife's signature on it. In the letter they say "we are confident that the terms and conditions were on the rear of the document and you therefore had sight of them" They then go on to say they can not as of yet provide a reconstituted version and until then they will not enforce.

 

So what happens when they can not provide a copy of the agreement, well they will try to persuade the judge that everything was kosher and you would try to persuade the judge that it wasn't.

If they then can produce witnesses and procedures that show they are telling the truth they will probably win however if you make an affirmative statement in court that you did not sign such a document and give a good reason why you believe you didn't then you will probably win.

 

Sometimes even when the agreement is enforceable the lender will decide not to chase it because it is not commercially viable. E.G in my case, I have no assets and am on ESA (sickness benefit) and if they took me to court and I applied to pay in instalments the order would probably be £1 per month. If the court costs etc are say £60 it is going to take them 5 years just to get those back as well as the cost of administering the collection.

 

You say that the default terms refer to charges of £12. Have a read through the actually original agreement and see if it refers anywhere to charges, it might say something such as late payment charges as described in S12 then have a look to see if there is a S12 . If that is the case then they have not fully complied with your S78 request.

 

Does any of that make sense?

[DJM10118]

Its all starting to drop into place thanks. What would you do regarding the two MBNA accounts who haven't responded to my S77-79 request?

 

 

I still don't understand why we have S61 legislation when its doesn't need to be complied with i.e. to be properly executed it must contain my signature. It would appear to me that they are making up their own rules as they go along and backed up by the courts. We can all get witnesses to fabricate the truth if required!!

 

 

If the lender has the original to conform with the supply of a recon PT under S77-79 then why not send it out to prove they meet the legislation.

 

 

Like you say there are some risk involved with contesting the debt in court.

[DJM10118]

DSAR Team

10 Carlton Street

Halifax

HX1 2AL

Data Protection Act 1998

 

Subject access request

 

Dear Sir/Madam

 

Account Numbers: xxxxxxxxxxx

Please supply me with all data that you hold on me. This includes in particular, but is not limited to, the following:-

 

1. The original signed, executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

2. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

3. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with ORIGINAL CREDITOR.

4. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

5. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

6. Details of any collection charges added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

7. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

8. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

9. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

10. Copies of statements for the entire duration of the credit agreement.

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply.

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

 

Yours faithfully,

[dx100uk]

please keep to your threads

and if you already have a thread running on a debt

refrain from starting a new one for the same debt.

 

click this SAR

 

put who you want to send it too at the top

 

off you go.

[DJM10118]

Will do

 

 

Could you confirm the correct address for SAR request to HBOS?

[dx100uk]

each forum has stickies that have the details on its homepage

 

click the blue Halifax bank and bank of Scotland right up the top here

 

look at the titles of the red/yellow stickies.

 

click and read

 

dx

[DJM10118]

Do you mean the sticky with reference to "Halifax & Bank of Scotland contact details" if so I am aware of this section but only asked if you could confirm the correct address as per my letter. There are three different addresses in that section and unsure if these are still valid/current.

[fletch70]

DJM

Sorry for not getting back to you before , been a busy morning

 

First off about S77-79. Many people feel that the decision that HHJ Waksman made was wrong but there are other parts of the ruling that are good. The only way to change it would been to have appealed but there was the cost and also the fact that there were some good points in there. This is what we have judges for, to interpret the law and make rulings although I do believe they are becoming more and more pro financial institutions who they seem to think are professionals with professional systems.

 

S60 and S61 tell us how the agreement should appear and what should be signed.The idea has always held that for Pre 2007 agreements you need to produce a signed agreement or a genuine copy to enforce. The genuine agreements are normally archived and stored but what happens if the storage unit burns down or gets flooded. That would not be fair on the banks so a genuine copy could be produced.

If they can not produce a signed copy it's then down to the judge to decide if one did exist so it's a he says she says argument. There is a recent case where the debtor said they did not sign the document that was presented and gave various reasons , one of which she said she opened the account in 1994 and the agreement was from 1998. She claimed not to have received any of the documents such as DNs or to remember anything about it really but she did remember there not being a box on the application form. When you read the judgement you will realise that the judge was not persuaded by her argument.

I can not post it as attachments are not allowed on this thread

 

If any of the mods can add an attachment let me know and I can email it to them to put up

[fletch70]

As for your other debts such as MBNA I personally would send them something like this

 

On XXXXXX I sent you a request under S77/78 CCA 1974 . This was received by you on xxxxxx. As I am sure you are aware S77(4) and S78(6) state that while such a request is outstanding you can not enforce the agreement

It has come to my recent attention that these accounts may not be legitimate and until such time as you can comply with my lawful request I have no option but to cease payments particularly as i find myself overstretched. Once I receive the documents and can ascertain my position I will be back in touch

 

In that you have told them that you know your stuff but not got threatening. If I received that I would be inclined to think, OK we get it sent off and he will start paying again

[Conniff]

Cheers dx

 

I mistakenly assumed that they would need to provide some evidence that I had signed the agreement

and had taken out the finance in accordance with their PT.

 

 

According to the courts, making payments for 10 years is a pretty good indication that something was signed or at least in force, otherwise, as the court asked, why have you been making the payments.

[Conniff]

As for your other debts such as MBNA I personally would send them something like this

 

"On XXXXXX I sent you a request under S77/78 CCA 1974 . This was received by you on xxxxxx. As I am sure you are aware S77(4) and S78(6) state that while such a request is outstanding you can not enforce the agreement

It has come to my recent attention that these accounts may not be legitimate and until such time as you can comply with my lawful request I have no option but to cease payments particularly as i find myself overstretched. Once I receive the documents and can ascertain my position I will be back in touch "

 

 

 

In that you have told them that you know your stuff but not got threatening. If I received that I would be inclined to think, OK we get it sent off and he will start paying again

 

That's not exactly correct, you're not showing 'you know your stuff'. If you stop payments, then it is your choice but it should be remembered that if and when they get the correct documentation together, all those non payments will be due.

[fletch70]

As has been discussed before. The OP was going to put them to one side

[dx100uk]

Do you mean the sticky with reference to "Halifax & Bank of Scotland contact details" if so I am aware of this section but only asked if you could confirm the correct address as per my letter. There are three different addresses in that section and unsure if these are still valid/current.

 

read the end of that thread

 

dx

[DJM10118]

I have read to the end of the thread several times dx and I don't consider a thread back in August 13 to be conclusive as to the current address. TBH I'm sick of playing guessing games with you. I simply asked if somebody could confirm which address in that section was current but all I got from you was read this and read that.

 

 

I never asked anybody to show me where it was as I'm am quite capable of navigating a forum and reading posts all by myself. I don't expect to be spoon fed the information but I would hope that if I ask a direct question I can get an appropriate answer.

[BRIGADIER2JCS]

Is this what you mean? A reconstituted agreement Must have your name and address as at the inception of the agreement.

If this is not so the recon does not comply!

[dx100uk]

I have read to the end of the thread several times dx and I don't consider a thread back in August 13 to be conclusive as to the current address. TBH I'm sick of playing guessing games with you. I simply asked if somebody could confirm which address in that section was current but all I got from you was read this and read that.

 

 

I never asked anybody to show me where it was as I'm am quite capable of navigating a forum and reading posts all by myself. I don't expect to be spoon fed the information but I would hope that if I ask a direct question I can get an appropriate answer.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?106783-Halifax-amp-Bank-of-Scotland-contact-details(1-Viewing)-nbsp

 

post three by our old departed friend martin 3030

 

I was trying to give general assistance on where to find address info on all bank forums

 

nothing meant

[DJM10118]

Ok dx thanks for the conformation I will change the address on my SAR letter.

 

 

Also I was hoping to send a non-compliance CCA letter to Idem as they are overdue a response. Should I omit the reference to S61 (1) from the template? Sorry to go over old ground but isn't this irrelevant due to the Carey vs HSBC case?

[dx100uk]

you don't have to send the failure to comply letter if you don't want too.

 

I pers would and I would also stop any payments.

 

sadly as always happens when certain members come up on a newbies thread

all it does is to unnecessarily confuse the newbie.

 

when at this stage in the game, there no need for it.

 

dx

[DJM10118]

My only concern with these two accounts with Idem is that fact that they were never defaulted.

There is approx £1000 on each to pay at £50 each per month.

 

If I stop the payments now

 

could they slap a default on my credit file for a further 6 years?

 

I suppose I was giving them a second opportunity to fulfil there requirements with the non-compliance letter.

 

If there is then any argument as to why I have ceased payments

 

I can say to the OFT that I gave them ample opportunity

 

and they have no legal right to apply the default on a debt they cannot substantiate

 

 

What to do think?

[dx100uk]

sadly not having an enforceable CCA does not prevent the OWNER

of a debt from marking your CRA file.

[BRIGADIER2JCS]

What markers are showing on your CRA files?

[fletch70]

Is this what you mean? A reconstituted agreement Must have your name and address as at the inception of the agreement.

If this is not so the recon does not comply!

 

Brig

That was sorted out at the beginning of the thread.

[fletch70]

Hi DJ

 

1 question and 1 suggestion

 

Question is, you said that you changed your NAME and address, did you mean that or just your address. It's just I assume you are a fella for some reason

 

Suggestion

Either send it to the HBOS head office as per website or pop in/call and ask them

 

Halifax, PO Box 548, Leeds, LS1 1WU That's the address on the

 

Or if it was Bank of Scotland then Bank of Scotland, PO Box 23581, Edinburgh, EH1 1WH

 

If you send the DSAR by RM signed for it still gives them 40 days to reply