Halifax replied to my CCA - is it enforceable

[craigers]

Yesterday I received a half a rain forest by special delivery in response to my Subject access request to BOS. I asked for copies of any application forms and copies of any signed executed agreements. Surprise surprise they produced another copy of my application form, albeit this one was much more legible than the one they sent with my CCA request. They blatantly don't have an enforceable agreement!

[London000]

Originally Posted by craigers

London, what are you wanting to achieve by going down the CCA route? If its a refund on unlawful charges then a gentle reminder that you are not obliged to make payments on an account in dispute on the grounds of an unenforceable credit agreement should hopefully work. It did for me with bosom buddy BOS.

Hi craigers,

I have sent already for the unlawful charges back in Dec08 and 2 months down the line Halifax did not even answer. I am already through fos and they have given Halifax 8 weeks. Still 2 more weeks...so in default as well.
CCA them, 14 days gone Halifax did not reply, then 2nd letter sent and they have replied on the on the 30th day with the letter and application plus a new statement of acc. I do not know what they think but I should go to court if they do not reply now. I have sent a letter now under the s60 and given them a lot of sites to have a look....see what they are replying. I told them they are in default and no money will be paid anymore. They can only dream....and if it goes to court I shall go without any problems. I shall ask a disclosure of everything they have under the CPR.....then I will take it up from there..they will go empty handed...
plus I shall ask them to repay all the money I have paid to this acc...
Did you find a good letter somewhere???
DD

[London000]

Originally Posted by vint1954

Hi London,

I think that we all have had similar responses from the same Manager.

Looking at a lot of the application forms on the forum, there is a date received stamp, all seem to be signed by the same person, for both Halifax and BOS applications. He must have been busy.

I responded to my receipt of documents in the way Craigers suggested, but not too gentle, pointing out that the documents received were inadequate and that the account was still in serious dispute.

I think that we are all realising, that to get a real copy of the signed agreement, a Subject access request needs to follow.

Vint

Hi Vint,

I have sent a good letter under the s60 and given them a lot of sites to visit....and is it goes further...I will aske them a disclosure under the CPR...then I will make them not only to bring the balance to 0.00 but to repay all my money back since opening this account....
I know they do not have anything else to disclose unles they will carboncopy my signature which is impossible as I would know if I have signed anything else....and if they copy it.....go under the different law...and they will go very down.
DD

[London000]

Originally Posted by illonavamp

Not an expert but, going on a similar case I went through with a credit card;

If it says "Application..." on the top it's exactly that.

Additionally the terms of the agreement must be (clearly laid out and) on the same page you sign if I remember correctly.

Hi ilonavamp,

Yes you are right about being on the same page....if not I would say goodbye to them. There are, somewhere on this forum very good letters to guide you. I have been looking around and it does make me laugh of how a bank would atract so many bright and clever people. It is very clear that they were only there to take the money without much of ...education...I think they are learning through these forums what to do as well.....
Good luck and if you have any good template letters or links do please share them with all the others....I shall put them on this forum as soon as I am sure....especially the outcome...
DD

[London000]

Originally Posted by illonavamp

Not an expert but, going on a similar case I went through with a credit card;

If it says "Application..." on the top it's exactly that.

Additionally the terms of the agreement must be (clearly laid out and) on the same page you sign if I remember correctly.

Hi there,
I have sent a different letter at the end in which, after I have given them lots of sites to have a look with regards to the CCA's cases, OFT, etc I have used the s61,65 and 127.
Quoting from my letter sent (it was about 4 pages):
I would refer you to Sections 61, 65 and 127 of the CCA 1974, and the recent binding decisions in the high court and court of appeal regarding the lack of prescribed terms in regulated consumer agreements (which applies in this case).

I refer the cases of Wilson V FCT and Wilson V Hurstanger.

Both these BINDING judgements hold that if a regulated agreement is missing any prescribed terms, or if the terms are misstated then the agreement is irredeemably unenforceable.
In Wilson V Hurstanger it is stated that the prescribed terms should be within the signature document and not in any other document. I believe that the document sent to me with my signature on does not contain the prescribed terms and as such is unenforceable

I should post the letter once I have any answer from them....then I will go under the CPR letter....
What did you send them??
DD

[London000]

Originally Posted by craigers

London, what are you wanting to achieve by going down the CCA route? If its a refund on unlawful charges then a gentle reminder that you are not obliged to make payments on an account in dispute on the grounds of an unenforceable credit agreement should hopefully work. It did for me with bosom buddy BOS.

Hi craigers,
I am sorry for my late reply but aI have just come back from a long deserved holiday...
To answer your question ...yes I would like to achieve the following:
Not to pay them any money anymore, Halifax to repay everything back as they were not entitled to any penny and appology in writing for trying to rip me off as well as others. I have Subject access request them a while ago in terms of unfair charges, but I feel that by using the same Subject access request (and fee already paid 10.00) could disclose evrything they have about me...cca.
After I have CCA them under the 77/78, and 3 letters have been sent, they replied with some default notices from nowhere.
Here is my previous letter and I am about to send them another one tomorrow.
Here is the previous one already sent, then Halifax replied that they will go ahead if by 2 of June 09 I do not pay any money....only received their letter....what a joke..anyway here it is:

Halifax Card Services
Halifax plc
Pitreavie BusinessPark
Dunfermline
FIFE
KY99 4BS
12/May/2009



FORMAL NOTICE - ACCOUNT STILL IN DISPUTE

Re: Your Response to my CCA Request. (Made by myself, on 25th March 2009) which you sent to me in a plain brown envelope, without so much as a covering letter apologizing for the delay, not to mention that I have received it almost opened – which makes me so worried now about how my personal details were/are unprofessionally handled.


Dear Miss/Mrs Anne Gartshore,

Re: Account number: 4556 ..................

I am in receipt of your 'letter', which I recieved on 9th of May 2009, the contents of which are noted.

Thank you for sending me what you have confirmed to be a true copy of the credit agreement that exist in relation to this account: new terms and conditions and a new executed agreement without any signature and a late statement, very unprofessionally printed.

I would refer you to Sections 61, 65 and 127 of the CCA 1974, and the recent binding decisions in the high court and court of appeal regarding the lack of prescribed terms in regulated consumer agreements (which applies in this case).

I refer the cases of Wilson V FCT and Wilson V Hurstanger.

Both these BINDING judgements hold that if a regulated agreement is missing any prescribed terms, or if the terms are misstated then the agreement is irredeemably unenforceable.
In Wilson V Hurstanger it is stated that the prescribed terms should be within the signature document and not in any other document. I believe that the document sent to me with my signature on does not contain the prescribed terms and as such is unenforceable.

Quote:
This is from Francis Bennion author of the CCA

"As the draftsman of the Consumer Credit Act 1974 I would like to thank Dr Richard Lawson for his interesting and well-argued article (30 August 2003) on Wilson v First County Trust Ltd [2003] UKHL 40, [2003] 4 All ER 97. Dr Lawson may be interested to know that I included the provision in question (section 127(3)) entirely on my own initiative. It seemed right to me that if the creditor company couldn't be bothered to ensure that all the prescribed particulars were accurately included in the credit agreement it deserved to find it unenforceable, and that the court should not have power to relieve it from this penalty. Nobody queried this, and it went through Parliament without debate. I'm glad the House of Lords has now vindicated my reasoning and confirmed that nobody's human rights were infringed.

As you have sent this documents in response to my requests under Section 78 (1) of the Consumer Credit Act 1974, then this statement by you is now binding on you as per section 172 of the Act.

Section 172 states:
172 Statements by creditor or owner to be binding

(1) A statement by a creditor or owner is binding on him if given under-
section 77(1), section 78(1), section 79(1), section 97(1), section 107(1)(c), section 108(1)(c), or section 109(1)(c).

This means that the documents you have sent are the only documents you may now rely on in any attempt at enforcing these alleged debts.
I maintain that these alleged debts are completely unenforceable under Section 127 of the CCA 1974. The CCA 1974 is clear on what agreements must contain in order to be enforceable, even in court. For full details I refer you to the excellent guidance from the Office of Fair Trading.

For cancellable agreements, you can find the guidance at:
<http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft018.pdf>

For non-cancellable agreements, you can find the guidance at:
<http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft019.pdf>

For your further convenience, I also refer you to the guidance on debt collection here:
<http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft664.pdf>


At the very least, an Agreement must contain the following within the signature document (on the same side) to be enforceable, even in court (see agreement Regulations 61(1)):

A credit limit or a statement as to how this will be determined.
An APR.
A schedule of repayments.
These are the prescribed terms as required by the Act and subsequent Regulations. There are also many other things, which are called required terms, that should be in an agreement. These include:
Details of default charges.
Statements of protection for customers.
What you have sent me fails to include all of the information needed to make it enforceable, and therefore it is completely unenforceable under Section 127 of the Consumer Credit Act 1974. For your information, you can find a copy of the CCA 1974 here:

<http://www.johnantell.co.uk/CCA1974.htm>

I am aware that Section 127 was repealed in the Consumer Credit Act 2006 but this is not retrospective and applies only to agreements signed after 6th April 2007 which is not the case here. For information on this, you can see the 2006 Act here:

<http://www.opsi.gov.uk/ACTS/acts2006/20060014.htm>

I refer you particularly to the Transitional Provisions outlined in Schedule 3, which confirm that the repeal of Section 127 is NOT retrospective.
You are saying that the documents you have sent me do comply with the CCA 1974. In that case, given the FACTS I have outlined above, perhaps you could direct me to all of the prescribed and required terms in the “Agreement” you have sent me given the fact that it should be on the same page as the signature, I think you will find that they are not there.

Once you have confirmed for yourself that they are not there, perhaps you would be so kind as to point me in the direction of the relevant legislation that allows you to enforce an agreement that is clearly unenforceable under Section 127. Again, I think you will find that this legislation does not exist.

The case law in these matters is clear.
The case of Wilson and others v. Secretary of State for Trade and Industry makes it clear that if a creditor does not have the correct paperwork to comply with the CCA 1974, then they cannot expect to benefit from this. Under these circumstances, the creditor loses all rights within the agreement, including the right to money already given out. You can find the full judgement of this case here:

http://www.publications.parliame nt.uk/pa/ld200203/ldjudgmt/jd030710/will-1.htm


Once again, I challenge you to give me an example of case law that supports your view that you may continue to seek to enforce an unenforceable agreement. At the risk of repeating myself, I think you will find that there is none.
In light of all of this information I have given you, I do not see how you can possibly maintain that this agreement is enforceable. Should you wish to try and construct a case (that has a basis in law) then I would be most interested to read it.

If you cannot construct such a case, I expect you to confirm it within 21 days that all collections activity on this account will cease and bring the whole balance to 0.00, an apology in writing as well as a return of all the money paid up to the date.

Quote:
In effect, the creditor – by failing to ensure that he obtained a document signed by the debtor which contained all the prescribed terms – must (in the light of the provisions in sections 65(1) and 127(3) of the 1974 Act) be taken to have made a voluntary disposition, or gift, of the loan monies to the debtor. The creditor had chosen to part with the monies in circumstances in which it was never entitled to have them repaid.


To remind you again, you should be aware that a creditor is not permitted to take ANY Action against an account whilst it remains in dispute as per my previous letter 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.

Your further non-compliance will result in complaints being forwarded to the relevant statutory bodies.

I await your response with interest.
Yours sincerely,

then tomorrow after they replied with a notice in which they mentioned that they will take action if I do not pay anything by 2 June 2009 and I shall seek help from solicitor...blah....

this is the next one I will send tomorrow or monday.....

VERY IMPORTATNT - ACCOUNT STILL IN DISPUTE

Re: Account number: 4556 ........................

Dear Miss/Mrs Charlotte Gurnell,

I am in receipt of your letter dated 25th May 2009 and received on the 26th of May 2009, which has been attached to the “dosar” for future events.

After reviewing the documentation sent in response to my Section 77/78 request for information relating to the above account and after Legal Advice I note that, in what you have supplied me with, you have failed to produce a True Copy of the signed Agreement in which to contain the prescribed terms as per section 61(a) and section 127(3) of the CCA 1974.

I am also aware that there are certain terms that are required to be within the “Agreement” and should these terms be mis-stated or not present within the Original documentation then agreement can be rendered irredeemably unenforceable in law and i therefore refer you to the following of which, as a large financial organisation, I am sure you are fully aware of:

s61(a) CCA - Signing of agreement:
(1) A regulated agreement is not properly executed unless—
(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and
(b) the document embodies all the terms of the agreement, other than implied terms, and
(c) the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.
s127(3) CCA:
(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.

I understand that section 78(1) of the Consumer Credit Act 1974 sets out clearly what is required to comply with my request and quote “shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it”. For clarification, I require a true copy of the agreement, any terms and conditions from the time when the agreement was executed a copy of the cancellation notice if the agreement refers to “Your Right to Cancel” within it. I also require a PROPER statement of account as laid out also within Section 78(1). If there weren’t any terms and conditions then please confirming this in your response.

I am aware that the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557) at Regulation 3, allows the Signature box and signature to be omitted in a copy document but the copy document must contain all the terms of the agreement contained within the signed executed original document.

I should also like to draw your attention to the decision in Wilson v Hurstanger (2007) EWCA Civ 299:

"...Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself:
- they cannot be orally agreed;
- they cannot be found in another document;
- they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them."

In light of the above I respectfully request that you provide a true copy of the original agreement signed by myself that you hold on file instead of the application you have sent and while I accept that you can omit the signature box for the purposes of compliance with my request, you will be aware that any challenge to the agreement in court would require the signed copy of the original agreement. If you still reject this, please provide clarification on the status of the Original Credit Agreement and confirm either that you hold the original signed agreement on file or a copy of it on microfliche or that you no longer hold the file.
I do not view this as an unreasonable request given that by supplying the document which i have asked for will help to resolve matters possibly without the need to involve the court and will undoubtedly save costs on both sides.

I look forward to receiving the documentation requested and within the spirit of the Civil Procedure Rules and Subject Access Request under the Data Protection Act (already sent in my earlier correspondence with regards to the unfair charges applied all these years- which by the way you have not yet returned the full amount asked – account still in default), I shall allow another 21 days for your reply.
Just to clarify as well the Subject Access Request under the Data Protection Act(already enclosed the £10.00 maximum required amount) again I would please ask you to send me everything you were/ are holding and recorded about me up to the above date, if not please confirm this in writing as well.



.
Furthermore, please be aware that any letter/s I receive from any third party/collectors could, under the Administration of Justice Act 1970 section 40, be construed as unlawful harassment.

To remind you again, you should be aware that a creditor is not permitted to take ANY Action against an account whilst it remains in dispute as per my previous letter 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 (hoping that you did not)
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.

Just as an addition to the above mentioned as well as my previous quotes showing in my earlier letters, I have found another one, which I am hoping that, will not upset you again by replying with your regular template letters which I believe are a waist of paper, time and customer’s money.
As you are now entered in a very serious dispute I will give you time to reflect on this situation and comply fully with my request within the time frame so we can solve this mystery once for all.

Quote:

The rules and regulations governing regulated credit agreements are in place to protect BOTH lender AND borrower. If the lender fails to follow the rules then the lender must accept the consequences. It is no different from any other branch of the law. If you are caught breaking the speed limit there is a penalty to pay.

Lord Justice Sedley concluded in a credit case " the moral for a pawnbroker (lender) ...is that if he wants the rewards of his trade he must operate strictly by the book, and that failure to do so may be not merely to unravel agreements, but to reverse the indebtedness that they have purportedly caused “.

As I mentioned in my previous letters, your default notice should have not been sent as the account is still in dispute. Not to mention that If we go to the court I should show your harrasement letters and phone calls I have received back in 2007, as well as one of your employer suggested in a very strange manners to borrow money from a friend to pay the amount of money.
I still believe that we should be able to resolve this situation in an amicable way.

Yours sincerely,

Shall I send a different one? add anything else? or not reply at all anymore???
Anyone????

[24233513afw]

Hi London 000

Just found your thread this morning and read it with great interest. I as wondering if you have had any replies to your letters. We are much in the same position but they have sent a copy of an Application Form that has application for 2 cards on it 1 for a BOS Mastercard & 1 for a BOS Vise on the same application from 1996 I shall try and get a new thread started and post it up it does have our signatures on it but no schedule of payment or APR or anything like this it is quite a poor copy we think it has been taken from microfiche. but not sure I shall try and get this up tonight if poss for everyone to see.
Following your thread with great interest you seem to a little a head of us.
Good luck
AFW

[London000]

Originally Posted by 24233513afw

Hi London 000

Just found your thread this morning and read it with great interest. I as wondering if you have had any replies to your letters. We are much in the same position but they have sent a copy of an Application Form that has application for 2 cards on it 1 for a BOS Mastercard & 1 for a BOS Vise on the same application from 1996 I shall try and get a new thread started and post it up it does have our signatures on it but no schedule of payment or APR or anything like this it is quite a poor copy we think it has been taken from microfiche. but not sure I shall try and get this up tonight if poss for everyone to see.
Following your thread with great interest you seem to a little a head of us.
Good luck
AFW

Hi there,
Welcome to this very interested forum. It is the greatest you can have and very helpful. Thank you for your reply.
I have 4 DN but no chance I will give in (I will not give them any money).
Can not wait for them to take me to court. Then I could see the faces of the ones that had been stolen money from me all these years.
I should post all other rubish threats they have sent. Not to mention that they have kept my card into one of their cash machines....but 1 week ago I have opened another account with different bank.
Have a look arond as you will find everything you need to give them a hard time.
Good luck and keep in touch.
If I can be of any help do let me know and I will direct you to some great people around in this forum. Have your own thread and you will see how many experienced people will help.
DD

[London000]

Hi there everyone,
Sorry that I have not been able to be on the site for a while but I have had my PC crushed by a virus.
Anyway back with a few updates from our useless friends - Halifax.
They have sent me a letter stating that they will not enter in anymore discussions and they will go ahead to action....That was almost 3 weeks ago but after that 2 letters followed.....ah...and 3 DN.
What a joke!!!!
They will have to waste a lifetime to get more money out of me now....
I will post the next letters I have sent in the next few days....as I will try to enjoy the rest of the day to the max...
DD

[London000]

Originally Posted by 24233513afw

Hi London 000

Just found your thread this morning and read it with great interest. I as wondering if you have had any replies to your letters. We are much in the same position but they have sent a copy of an Application Form that has application for 2 cards on it 1 for a BOS Mastercard & 1 for a BOS Vise on the same application from 1996 I shall try and get a new thread started and post it up it does have our signatures on it but no schedule of payment or APR or anything like this it is quite a poor copy we think it has been taken from microfiche. but not sure I shall try and get this up tonight if poss for everyone to see.
Following your thread with great interest you seem to a little a head of us.
Good luck
AFW

Hi AFW,
I realised that I did not answer to you question by any mistake..
Sorry.
Yes they have answered but they are bluffing....I will be posting all the letters received and sent up to date within the next few days as I have to reinstall all my programs to my new PC.
I will start to ignor them but not before I will put them on notice with regards to collectors(home visits). I believe that it is enough of coresponding with a bunch of ignorants, without any morals. I am considering to take the fos way. In this way I will be in a well deserved break.
Good luck and let me know of any future developments.
DD

[scotswalker]

Morning DD,

My OH has decided to open his own thread regarding these Creit Cards not sure how to do a link but if you look for 'Scotswalker' or Bank of Scotland Credit Card CCA he will keep you posted cheers for the. We feel it will give him something to do as he is Medically retired due to an accident and this should keep him occupied on his ggod days. I have sent you this message from his CAG name in case you want to have a read. 24233513afw

[vint1954]

Originally Posted by scotswalker

Morning DD,

My OH has decided to open his own thread regarding these Creit Cards not sure how to do a link but if you look for 'Scotswalker' or Bank of Scotland Credit Card CCA he will keep you posted cheers for the. We feel it will give him something to do as he is Medically retired due to an accident and this should keep him occupied on his ggod days. I have sent you this message from his CAG name in case you want to have a read. 24233513afw

http://www.consumeractiongroup.co.uk...-card-cca.html

[London000]

Originally Posted by scotswalker

Morning DD,

My OH has decided to open his own thread regarding these Creit Cards not sure how to do a link but if you look for 'Scotswalker' or Bank of Scotland Credit Card CCA he will keep you posted cheers for the. We feel it will give him something to do as he is Medically retired due to an accident and this should keep him occupied on his ggod days. I have sent you this message from his CAG name in case you want to have a read. 24233513afw

Hi there,

I had a look at it. Yes we are all getting all these crapy templates.
I would sugest if you want to ask lexis200. You will find it a few pages down. I think is one of the best I have seen. You will be amazed by what he can come up with....and have a good laugh of poor Halifax....
I have used copy and paste so many times as my fingers look like Arnold Swarzeneger..... Anyway there is Craigers to watch, Marendove 52 (I hope I got the name right) and Man42. Thay are amazing. As I have said when I came to this forum I didn't even know what to do but by now reading this forum I can say that I will give Halifax something to think about for the next few years.....(closed everything I have had with them - not using their cards at all).
Such good managers Halifax have, that by entering in disputes with their customers they will be on their way out...I hope as everyone will just go.
I will continue to kick their back side for a little longer until I will start ignoring them....NO MONEY HALIFAX WILL SEE FROM ME unless they will agree to pay back all the charges + 8% + compensation + appology + removing all the bad credit + all the repayments cover they have charged also (and that is totaling axactly the whole amount on the balance).No chance I will go back to them again...
Anyway good luck and let me know for the outcome.
I shall be posting me other letters as well as their crapy ones...
DD

[London000]

Hi there,
I will send Halifax another 2 letters. One in which I have to Subject access request them and another one just to give them some more headache....and p..s them off.
I shoud post them up as soon as I have a proper word software installed in my new PC.
Good luck everyone and do not give up...as I don't...
DD

[London000]

Hi there,

First of all I need to Thank everyone from this forum (and I must mention as well my favorite one - Lexis) for everything.
God Bless !!!

As promised I am now able to post the letters sent ...minus my details...

1st one is the CPR sent a while ago:

Dear Mrs./Ms Anne Gartshore,


I write with regards to the above account with your organization.

I respectfully request that you provide me by return a copy of the credit agreement which bears my signature. I require this as i have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed.

Obviously if the agreement is improperly executed I would be entitled to ask the court to consider the agreement and make a declaration of the rights of parties to the agreement.
I must stress this request is made pursuant to the Civil Procedure Rules (Pre action protocols and Part 31.16) and therefore unsigned copy will not suffice, only a copy of the original contract in its unaltered form will suffice in these circumstances.

I do not view this as an unreasonable request given that by supplying the document which I have asked for it, will allow me to assess if my case has merit and will help to resolve matters possibly without the need to involve the court and will undoubtedly save costs on both sides.

I look forward to your reply and would ask for a response within the next 7 days from the above date.


Second letter just gone:


Dear Mrs./Ms Anne Gartshore ,

I write with regards to the above account with your organization.[/font]

Your response in no way goes towards answering my concerns raised in the first letter, and the second, a formal complaint, in which I’ve had your standard template letters in response.

You stated that the 1 page of an application without any of prescribed terms, and a set of current terms, fulfils your requirements under the Consumer Credit Act 1974. It does not. I quote from the Act:[/font]

78 Duty to give information to debtor under running-account credit agreement
(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer.[/font]

On the page that is not wholly illegible, the text refers to conditions ‘overleaf’. Your current terms are plainly missing, therefore I am requiring the historic terms.[/font]

Notwithstanding the above, you will be well aware that the document you have supplied is in no way an enforceable agreement. I will not go into the legal descriptions anymore as I have done it in my previous letters. You are well aware of them in any case, and will know that without a legible, signed agreement itself containing all the prescribed terms, you may not take any enforcement action.[/font]

If I do not hear from you within the next 21 days I will escalate this complaint to the Financial Ombudsman Service. I feel I am being more than fair in giving you this extra time.


Sending an Application form is a breach of the Act and Consumer Credit (Agreements) Regulations 1983 as, apart from the information that the regulations provide that you may exclude, the copy must be a “true copy” of the agreement. For the avoidance of any doubt section 3(1) of the 1983 regulations shows that, subject to certain limited exceptions, any copy of an unexecuted agreement must be a ‘true copy’. This means that it must be identical to the agreement as presented or sent to the debtor for signature.

Section 3(2) of the same regulations states what may be excluded from copy documents: 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 there under as to the form and content of the document of which it is a copy.[/font]

What you have sent me does not have the required inclusions, and is not in the correct form.[/font]

As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law, as shown below.[/font]

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor [/font]

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.[/font]

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. 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. I have not written them here for you as I’m sure you are well aware of them, suffice to say none of the terms are present in the document[/font]

I also am unable to read the information on one page of the Application form due to the utter illegibility of the copy. This in itself contravenes the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI 1983/1557).[/font]

Regulation 2 states:[/font]
2 Legibility of notices and copy documents and wording of prescribed Forms
(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a color which is readily distinguishable from the [background medium upon which the information is displayed].[/font]

As you have failed to fully respond to my legal request, this alone is sufficient for this account to remain in dispute.
This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.[/font]

To register information with a credit reference agency, you must have written consent from the customer to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.[/font]

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. Any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office [/font]

To sum up, I will not be making any further payments to you until you provide me with the document I have requested. The resolution of this situation is within your hands. Whilst you remain in default of my request, you are not permitted to take any action against this account. This includes adding further charges and passing any information to the credit reference agencies.[/font]

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.[/font]
It is not sufficient to simply state that you have a ‘legal right’; you must outline your reasoning in this matter and state upon which legislation this reasoning depends.
Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute.[/font]

The lack of a credit agreement is a very clear dispute and as such the following applies:[/font]
• You may not demand any payment on the account, nor am I obliged to offer any payment to you.[/font]
• You may not add further [FONT='Times New Roman','serif']interest[/font] 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 that I have an on going complaint with. You have 21 days from receiving this letter to contact me with your intentions to resolve this matter.

And finally the 3rd one which goes within the next days is the template of Subject access request from this forum but added a few things such as :
......................... ....................
I am enclosing the statutory maximum fee of £10. If it costs less than the £10.00 to disclose everything I have mentioned above feel free to return the amount left as I am relaying on means tested benefits (Job seekers allowance) for my income[/font]
Lots of kisses.....

[London000]

Hi there everyone,

Have a look at these ones!!!!!

A request made pursuant to s77/78 CCA 1974 leaves the lender able to send you a document that is not an exact copy of the original agreement. Thus if the original agreement was defective the lender may hide such defects with a “True Copy
This means that while the lender may have complied with the legislation, you will not have your signed agreement or a copy anywhere near to it.

So what can you do to get the correct information that you need? Well, firstly, you need to write to the lender and ask for the agreement making sure that you make it clear you require a copy of the signed agreement in its original form and that the request you are making is NOT made under the Consumer Credit Act 1974.

As a consumer, you probably wont be aware but the Civil Procedure Rules part 31.16 allows you to seek disclosure of documents which support your case from their other side. The main parts to concentrate upon are CPR 31.16(3)(C)&(D), lets have a look at what this section allows us to do.
CPR 31.16 states
Disclosure before proceedings start
31.16
(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started1.
(1) This rule applies where an application is made to the court under any Act for disclosure before proceedings have started1.
(2) The application must be supported by evidence.[/font]
(3) The court may make an order under this rule only where –[/font]
(a) the respondent is likely to be a party to subsequent proceedings;[/font]
(b) the applicant is also likely to be a party to those proceedings;[/font]
(c) if proceedings had started, the respondent’s duty by way of standard disclosure, set out in rule 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; and[/font]
(d) disclosure before proceedings have started is desirable in order to –[/
(i) dispose fairly of the anticipated proceedings;[/font]
(ii) assist the dispute to be resolved without proceedings; or[/font]
(iii) save costs.[/font]
(4) An order under this rule must –[/font]
(a) specify the documents or the classes of documents which the respondent must disclose; and[/font]
(b) require him, when making disclosure, to specify any of those documents –[/font]
(i) which are no longer in his control; or[/font]
(ii) in respect of which he claims a right or duty to withhold inspection.[/font]
(5) Such an order may –[/font]
(a) require the respondent to indicate what has happened to any documents which are no longer in his control; and[/font]
(b) specify the time and place for disclosure and inspection. [/font]

Thus you can ask for the documents if you believe you have a case against a proposed defendant, for example, you believe the agreement may be improperly executed and that you may have a claim for a declaration pursuant to s142 (1) Consumer Credit Act 1974. Without the original agreement you would not be able to assess if it was indeed properly executed, how do you know if the agreement was in the prescribed form? Containing the prescribed terms? Was it a multiple agreement but failed to set its terms out correctly? Was there PPI, which was not incorporated correctly into the agreement? [/font]
There are many reasons why you would need this information and remember at the time you entered into the agreement you probably weren’t aware of your rights as a consumer so you wouldn’t have checked the agreement with a fine tooth comb nor does the law expect you to, the law required the lender to get it right, to put together an agreement as required by the CCA to ensure you were told the true costs of borrowing, how much you would have to repay, when how etc[/font]

Unless you have the original document you wont know if it was compliant with the legislation, so you need to ask for it!!
]
DD

[London000]

Originally Posted by 24233513afw

Hi London 000

Just found your thread this morning and read it with great interest. I as wondering if you have had any replies to your letters. We are much in the same position but they have sent a copy of an Application Form that has application for 2 cards on it 1 for a BOS Mastercard & 1 for a BOS Vise on the same application from 1996 I shall try and get a new thread started and post it up it does have our signatures on it but no schedule of payment or APR or anything like this it is quite a poor copy we think it has been taken from microfiche. but not sure I shall try and get this up tonight if poss for everyone to see.
Following your thread with great interest you seem to a little a head of us.
Good luck
AFW

Hi there,
Sorry I have missed a few of your questions...
I do receive letters from DCA but as you can imagine they are going around and around ....and the more they do that the more I reply in the same way.....
I believe I am not much more ahead of you as their letters are almost similar...just as mine..until I have sent them the CPR one + the Subject access request tomorrow... see what happens...
Any reply from them on your side???
DD

[vint1954]

Originally Posted by London000

Hi there,
Sorry I have missed a few of your questions...
I do receive letters from DCA but as you can imagine they are going around and around ....and the more they do that the more I reply in the same way.....
I believe I am not much more ahead of you as their letters are almost similar...just as mine..until I have sent them the CPR one + the Subject access request tomorrow... see what happens...
Any reply from them on your side???
DD

I have sent CPR letters to Halifax and MBNA. Both ignored.

[lexis200]

Yep, I CPR'd Blair Oliver Scott twice for two BOS accounts and have heard nothing. The first one was in November. When I have queried it, the question has been completely ignored.

Not to say it's not worth doing though as it certainly shows then in a crappy light once again

[London000]

Originally Posted by lexis200

Yep, I CPR'd Blair Oliver Scott twice for two BOS accounts and have heard nothing. The first one was in November. When I have queried it, the question has been completely ignored.

Not to say it's not worth doing though as it certainly shows then in a crappy light once again

Hi Lexis,
Sorry, I have missed your reply sent today.

If you wish I have a second letter....under CPR unless you wish to give up on this route...but shoud you go to Court you could use it agains them as they have not disclosed you docs. not even under the CPR...
Let me know if you wish this letter to guide you...
DD