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looking for a bit of advice on what the next best step would be for fighting HBOS.
I've read a few other forum posts but can't seem to find anything with the same letter as the one I have received from them yesterday.
So far I have only sent in 1 letter for a CCA request under Section 78 and have received back the T&C's from when the card was taken out with my previous address on it, and also a copy of the current T&C's with my current address on it and the letter detailed below.
Sadly I don't have access to a scanner right now so I'll have to type up the letter..
Dear XXXXX
Our Reference : XXXXXX
Thank you for you letter of 4th May 2009.
At the moment we are unable to provide a copy of the signed application form. I have enclosed executed copies of the agreement in place at the time the account was opened and the one currently in place. However we can confirm our procedure has always been to obtain our customers signature to an agreement containing the prescribed terms before entering into a credit card agreement. As such, we are confident that the agreement remains enforceable.
The regulations define what is required of a "copy". Whilst regulation 3 provides "every copy" of an executed agreement... shall be a true copy". Regulation 3(2)(b) provides that a copy can omit any signature box, signature or date of signature.
In summary, to comply with Section 78, the copy does not need to be a copy with the customer's signature on it. We do not have to produce an actualy copy of the document signed. The purpose of section 78 is to allow debtors access to their terms and conditions of their credit agreement and by providing the debtor with a true copy of the terms and conditions of the agreement we have complied with section 78.
While we try to locate the full original agreement we will not be seeking to enforce the agreement. However, even if an agreement is unenforceable, the contract still has legal effect and is not void, the lender is merely prevented from seeking an enforcement order from the court.
I hope this clarifies our position.
Yours faithfully,
Anne Gartshore
As it stands at the moment I'm not making any payments to them but I'm really not too sure what to make of the last paragraph.
If they are unable to find the agreement and can't get an enforcement order from the court can I write back to them offering them the chance to write the debt off and / or send an lba? Or should I sit tight and see if I ever do get this document?
Not really sure where I am now, but I'm hoping that last paragraph is as positive as I've taken it to be!
Basically, they have no agreement- the T&Cs are trying to appease your s78 request and assume you're a fool. They don't have the application form either. They're up doo-doo creek without a paddle, hence the
However we can confirm our procedure has always been to obtain our customers signature to an agreement containing the prescribed terms before entering into a credit card agreement
and
While we try to locate the full original agreement we will not be seeking to enforce the agreement.
They know they don't have a leg to stand on.
What are you hoping to achieve? When did you apply for the card?
I've been sitting thinking about my next course of action and was considering sending a letter along the lines of the one below.
Apologies for any spelling mistakes or grammatical errors and please feel free to suggest things to add or remove or offer any opinions you might have freely.
I don't want to nasty with them yet as they have been pretty hassle free to this point, I really just want something in writing clarifying their exact position and making my position clear while I wait to see if this "document" is ever found.
Anyway, here's the letter...
Dear Sir/Madam,
Thank you for your letter dated 3rd June 2009, received 6th June 2009 detailing your position relating to our previous correspondence.
I quote from your letter as dated above
“At the moment we are unable to provide a copy of the signed application form”
A signed application form is not sufficient evidence that any agreement has existed between us.
At present the documents I have received are no more than print outs of Terms & Conditions which again do not satisfy the needs of the Credit Consumer Act 1974 to act as an enforceable agreement.
I quote again from your letter
“While we try to locate the full original agreement we will not be seeking to enforce the agreement....”
From the wording above I have taken it to mean the following:
You may not demand any payment on the account, nor am I obliged to offer any payment
You may not add further interest or any charges to the account
You may not pass the account onto 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
Please respond within 14 days confirming if this is your current position or, if not, what your position is in the aforementioned matter.
I understand that it may take you some time to post to me the requested Consumer Credit Agreement in it's original signed and un-altered state and look forward to hearing from you in the near future.
I've managed to get my hands on a scanner at long last and have attached links below showing each letter I've had back from Halifax.
I'm not quite sure where I am with them now, I've replied thanking them for the letter advising they are deeming the agreement unenforceable at the moment and got back the last letter dated 22nd June 2009.
Any help or thoughts would be very much appreciated.
I've just come home from work to find a letter from Halifax sitting on the door mat.
The letter I got from them on 3rd June stated they couldn't find a copy of the agreement and as such were treating it as unenforceable so I replied (letter posted in thread above on June 7th) and received the last letter dated 22nd June 2009 saying that they feel the agreement is enforceable (make up your mind?).
Today I have received from them a default notice which I have linked to below.
Now I'm not sure what to do with them. On one hand they're telling me they can't find the agreement and as such it is unenforceable, on the other they are telling me it is enforceable and are now applying a default.
Well for a start they have very kindly sent you an invalid DN - but keep quiet about that; on no account alert them to it.
Did you keep the envelope it came in? Very important to do this and make a note of when you received it.
Without a valid DN and an enforceable agreement, they cannot recover through the courts. All they can do is keep asking you to pay: Although that doesn't mean the numpties won't threaten and even try legal proceedings.
What's your next step? Pour yourself a celebratory drink and wait for a termination notice to drop through your door.
Thanks for the quick reply underdog, that's very encouraging!
I still have the envelope that it came in and is filed away with all their other letters.
I'm looking forward to that celebratory drink you've been talking about, I just have a quick question if I may?
The DN I've received from them, on what basis would this be invalid? I'm assuming due to the time of notice I've been given (10 days from receipt of letter) but just want to be 100% certain incase they do at some point manage to get me into a court room!
Thanks for the quick reply underdog, that's very encouraging! You're welcome
I still have the envelope that it came in and is filed away with all their other letters. Jolly good
I'm looking forward to that celebratory drink you've been talking about, I just have a quick question if I may?
The DN I've received from them, on what basis would this be invalid? I'm assuming due to the time of notice I've been given (10 days from receipt of letter) but just want to be 100% certain incase they do at some point manage to get me into a court room! Yep, didn't allow time for service.
Just another quick question, is there a letter that I should send to Halifax to keep communication channels open, or should I just hold off any contact with them for the mean time?
Recently received my Termination Letter from Halifax, I'm sure the debt collectors will soon follow (as has happened with my BOS card although no termination letter?)
I've added the link to it, I'm guessing I just sit back and wait for the debt collector letter now? I'm going to have to reply to Albion for my BOS card but i'll put that info up there in a minute
singular v HBOS
Originally Posted by singular08
Thanks for the quick reply underdog, that's very encouraging! You're welcome
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