Halifax Credit Card Refuse CCA

credit_cardprob

Hope someone can advise, original posted on the Credit Ccard Forum

Hello,

Requested twice CCA from Halifax Credit Card, I used the template from the National Debt Line. Having no luck from them, please see below the letter I received :

You have previously requested under section 78 of the Consumer Credit Act 1974 a copy of the executed credit agreement, We provided you with a copy, with compiles with the requirement of the Consumer Credit Act 1974 and the Consumer Credit regulation.

All I received was the terms and condition ( standard form ) nothing with my name on, credit limit etc.

You now ask for a copy of the application form with your siganature on it. We are not required to provide such documnet under section 78. 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) provide that a copy can omit any signature box, signature or date of siganture.

As I believe when I request for my CCA, it should be the original agreement with my name, credit limit, apr and signature. Should I carry on paying Halifax the minimum repayment each month ?? This has been ongoing for the last 3 months.

Please advise

Burlesque_Babe

Here are the replies to your duplicate thread.....

http://forums.moneysavingexpert.com/showthread.html?t=1476515

fermi

Need to see what they sent really. Can you scan in and post what was sent?

With no name, address or credit limit etc it sounds as they may not have complied or that it is otherwise unenforceable.

But would need to see what these T&C's are actually comprised of first.

fermi

Burlesque_Babe wrote: »

Here are the replies to your duplicate thread.....

http://forums.moneysavingexpert.com/showthread.html?t=1476515

Cheers.

Burlesque_Babe

Nos Problemos Fermi

credit_cardprob

The copy of the t & c are in poor condition, like I stated it is a standard copy. Name, date , credit limit is not on it. Thought when requesting CCA, the banks must obliged, why Halifax states thet don't need to ??

fiveyearplan

So all you received were the T&Cs? Sounds like they don't have anything. I would write back and tell them they must have forgotten to include the Agreement and only put in some random terms and conditions that could relate to anything.

The time is still ticking on so tell them you will report them to the Information Commissioner if they are not sent by date.

fiveyearplan

credit_cardprob wrote: »

The copy of the t & c are in poor condition, like I stated it is a standard copy. Name, date , credit limit is not on it. Thought when requesting CCA, the banks must obliged, why Halifax states thet don't need to ??

They try anything on. Oh and by the way, in addition to my post above, be sure to tell them that this account is in dispute and you will not be paying any more payments and they cannot hassle you (ie no phone calls etc.) for payment as long as the account is in dispute.

fermi

If you are sure, then..............

Re: my request under the Consumer Credit Act 1974

Thank you for your recent letter sent to me dated <date>, the contents of which are noted.

However, the reply received by me does not fulfil your requirements under the Consumer Credit Act 1974.

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter, dated <date>.

My request remains outstanding. The document supplied does not constitute a true copy of a credit agreement and that which you sent does not even contain all the prescribed terms and is not 'properly executed'.

An agreement must conform to regulations made under the provisions of section 60(1) Consumer Credit Act 1974 otherwise it cannot be properly executed.

These regulations are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). The regulations set out the form and content of agreements. For an agreement to be compliant with the regulations it MUST embody within the agreement, the prescribed terms laid out in the SI 1983/1553. Without the prescribed terms the agreement does not conform to section 60(1) Consumer Credit Act 1974 and therefore cannot be properly executed as described in section 61(1).

For your information in case you are unsure, the prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: -

• A term stating the credit limit or the manner in which it will be determined or that there is no credit limit.

• A term stating the rate of any interest on the credit to be provided under the agreement and:

• A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following:-

(a) Number of repayments;
(b) Amount of repayments;
(c) Frequency and timing of repayments;
(d) Dates of repayments;
(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

Now, nowhere on the alleged agreement that you supplied is there any reference to the final two items above.

I wish to remind you that the absence of these terms will render a document unenforceable in court and I also wish to point out that these terms MUST be contained within the agreement and NOT in a separate document headed terms and conditions or words to that effect.

Therefore, you have failed to supply an enforceable and properly executed document and therefore remain in default of my legal request under the Consumer Credit Act 1974.

As you are no doubt aware section 78(6) states:

If the creditor fails to comply with Subsection (1)

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement;

Therefore this account has become unenforceable at law.

You have failed to comply with a lawful request for a true copy of the said executed agreement.

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS and with be VIGOROUSLY defended, putting you to a STRICT PROOF of your claim and COMPLIANCE with the law.

If you cannot supply me with a document, which complies with the Consumer Credit Act 1974, and ALL of the Regulations made under the Act, I shall be forced to make a complaint to Trading Standards and I will also draw this to the attention of the Office of Fair Trading.

You had until <date> to provide me with the true copy I requested. After that date you entered into default of my request. Whilst the account is in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you.

Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agencies (or any third party).

To register information with a credit reference agency, you must have written consent from the data subject 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.

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.

Therefore you have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint, otherwise your conduct will be reported to the Office of Fair Trading, the Financial Ombudsman and Trading Standards. Any investigation undertaken by them may affect your ability to hold a consumer credit license in the future.

Should you not have any signed and properly executed credit agreement in relation to this alleged debt, please confirm this in writing to me.

I would appreciate your due diligence in this matter.

I look forward to your reply.

Yours faithfully

credit_cardprob

many Thanks for the template, I'll keep you upto date with gthe progress !! Any ideas why Halifax stated :

You now ask for a copy of the application form with your siganature on it. We are not required to provide such documnet under section 78. 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) provide that a copy can omit any signature box, signature or date of siganture.

fermi

credit_cardprob wrote: »

many Thanks for the template, I'll keep you upto date with gthe progress !! Any ideas why Halifax stated :

You now ask for a copy of the application form with your siganature on it. We are not required to provide such documnet under section 78. 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) provide that a copy can omit any signature box, signature or date of siganture.

Because that bit is actually true for a request under section 78. See my quote from the regulations at the bottom of this post. It is the rest of what they have supplied/said that is rubbish.

Obviously they would like to focus on that bit, wouldn't they?

They are trying to misdirect you away from the fact that the rest of what they have sent is worthless and does not comply.

While they can omit the signature box from a section 78 request, if they chose to take it to court you could insist that they produce a genuine signed copy. If this agreement was taken out before April 2007, then without a signed copy containing the prescribed terms the court cannot make an order enforcing the agreement.

Regs refered to above:

Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 1983 (SI 1983/1557)

3 General requirements as to form and content of copy documents

(1) Subject to the following provisions of these Regulations, 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 be a true copy thereof.

(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 cancellable executed agreement delivered to the debtor under section 63(1) of the Act, the date of the signature by the debtor of an agreement to which section 68(b) of the Act applies);

(c) in the case of any copy of an unexecuted agreement delivered or sent to the debtor or hirer under section 62 of the Act, the name and address of the debtor or hirer