Is this Halifax CC agreement legal?

Pentax

Hi,

I have a Halifax credit card taken out in 2003.

I recently sent a CCA section 78 request to try and determine whether they held an enforceable agreement in respect of the debt. I received a reply enclosing historic & current terms and conditions, with no signatures, and carrying the CCA 1974 heading.

I understand that is sufficient for them to have complied with the CCA/78 request - but, of course, does not indicate whether they do still retain a signed agreement that could be enforced by them in the case of my default.

The documents that they sent me can be seen here ( Two 8 page copies of the T&C's, one historic, one current)

http://www.pbase.com/lastlight/halifax_documents

I also have the original agreement that was was sent to me, along with my first credit card, in 2003.

This sets out the terms and conditions, but contains no signatures or dates from either party.

From my web research I understand that this is the 'statutory copy' of the agreement that they were obliged to send me under the terms of CCA 1974.

Should this statutory copy have contained signatures and dates, etc - is it, in fact, a valid document?

If it does not comply with the requirements of CCA 1974, what effect does this have on the agreement?

The original statutory copy of the agreement can be found here:

http://www.pbase.com/lastlight/original_agreementt

many thanks for your help and advice.

Cyril

It sounds to me like a generic T & C that anyone would receive now, to me its not a legal document if it is not personal to you but i'm sure someone more experienced will be along soon.

Miss_Marple_2

If your account was opened in 2003, these are not the terms that were in place at the time - as there is the last payment fee is set at £12, which was not introduced until later.

This means that they have not provided you with a true copy under the CCA section 78, and so they are in default. I would send the 12+2 day letter letting them know that you know these are current T&Cs, not the original. I think a template of the 12+2 letter that Fermi posted somewhere also asked that the creditor confirm in writing if they have an executed copy of the CCA.

Pentax

Cyril wrote: »

It sounds to me like a generic T & C that anyone would receive now, to me its not a legal document if it is not personal to you but i'm sure someone more experienced will be along soon.

Thank you very much for your prompt response, Cyril.

I'm particularly interested in the 'original agreement' (second link) that was sent to me with my first credit card.

This would appear to be the statutory copy required under the terms of CCA 1974, but it contains no signatures.

I (think) that statutory copies of Hire Purchase & Loan documents, etc, are obliged to be exact replicas of the original agreement and carry signatures and dates.

However, I'm not sure if this requirement applies to credit card agreements - nor, if it does, what the omission of the signatures implies for the validity of the agreement.

Hopefully someone will have the information - and thanks again for taking the trouble to respond.

LetMeOut_2

Hiya, I am new to all this, but I have been told that I needed to do a SAR instead of a CCA request in order to get the copies of the originals with my signature on them.

Hopefully I have picked that up right, and if I have, I guess that is what you need to do too.

Pentax

LetMeOut wrote: »

Hiya, I am new to all this, but I have been told that I needed to do a SAR instead of a CCA request in order to get the copies of the originals with my signature on them.

Hopefully I have picked that up right, and if I have, I guess that is what you need to do too.

Hi,

A SAR will be my next step - but even that may not turn up the signed original (or not, as the case might be)

They can claim that the original document is stored at a facility that is not subject to the requirements of the Data Protection Act, and thus avoid disclosing it in a SAR.

LetMeOut_2

:-/ what a total pain in the backside!!!

Pentax

Miss_Marple wrote: »

If your account was opened in 2003, these are not the terms that were in place at the time - as there is the last payment fee is set at £12, which was not introduced until later.

This means that they have not provided you with a true copy under the CCA section 78, and so they are in default. I would send the 12+2 day letter letting them know that you know these are current T&Cs, not the original. I think a template of the 12+2 letter that Fermi posted somewhere also asked that the creditor confirm in writing if they have an executed copy of the CCA.

Hi, unfortunately one of the two sets of T&C's is (almost) exactly the same as the terms and conditions printed on my original agreement copy (second link) - even showing the £25.00 penalty fee.

The only difference is a minute difference in the interest rate (0.01% in my favour) - so I don't think I can claim non-compliance with the CCA request

Pentax

LetMeOut wrote: »

:-/ what a total pain in the backside!!!

Indeed - but let's not forget that they have a lot of highly paid people engaged in preventing the disclosure of agreements that might not be valid.

From what I can see, it's always going to be a gamble - the best we can do is try and see as much of their hand as possible before deciding on our next move.

That's why I'm interested in validity of the original agreement copy they sent me in 2003 - if that was incorrect (no signatures, etc) it *might* give me another way to invalidate the agreement, without having to go through the tooth-extraction process of discovering whether they hold a signed ( and, thus, enforceable) agreement.

live-life-debt-free

I hate to tell you this but under the s.78 request they can send you a reconstructed copy of the original omiting signaures along with the terms at the time it was taken out and the current terms and a statement of the account.

I see an agreement with the terms from 2003 and the current terms so for a s.78 request all thats missing is the statement of account.

To enforce through the court they would need a copy of the signed agreement so you will need to SAR them for this.

You might want to try and put the account in dispute as they haven't fully complied with a s.78 request because no statement of the account was provided with this so try this letter and see how you get on

Dear Sir/Madam

Re:− Account/Reference

ACCOUNT IN DISPUTE
I have received the documents you sent and in the accompanying letter you state “Enclosed is a copy of the executed agreement”. You have confirmed this to be a true copy of the credit agreement that exists in relation to this account. As you have sent this document in response to a formal request under Section 78 (1) of the Consumer Credit Act 1974, this statement is now binding on you as per section 172 of the Act.

I must inform you that the information received does not meet the requirements of a properly executed credit agreement under the 1974 Act.

The documents received amount to no more than a pre-contractual application form and do not contain any of the prescribed terms as set out in the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) Schedule 6 Column 2.

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974

The absence of a properly executed credit agreement prevents you from:

• Adding interest to the account
• Taking any enforcement action on the account
• Issuing any default notices or registering any default marker with a credit reference agency.

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.
Wilson v First County Trust Ltd [2001] EWCA Civ 633, Sir Andrew Morritt, Vice Chancellor said:

• The creditor must…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

In the case of Dimond v Lovell [2000] UKHL 27, Lord Hoffmann said:

• Parliament intended that if a consumer credit agreement was improperly executed, then subject to the enforcement powers of the court, the debtor should not have to pay.

I would also point out that if you continue to pursue me for this debt while it is dispute you will be in breach of the OFT guidelines.
What I Require

• I require all correspondence in writing from here on; any persistent attempts to contact me by phone will be reported to trading standards
• I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case.

Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

Since the agreement is unenforceable and any default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for you to write the debt off.
I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages


Yours Faithfully
Your name
Name

Pentax

live-life-debt-free wrote: »

I hate to tell you this but under the s.78 request they can send you a reconstructed copy of the original omiting signaures along with the terms at the time it was taken out and the current terms and a statement of the account.

I see an agreement with the terms from 2003 and the current terms so for a s.78 request all thats missing is the statement of account.

To enforce through the court they would need a copy of the signed agreement so you will need to SAR them for this.

You might want to try and put the account in dispute as they haven't fully complied with a s.78 request because no statement of the account was provided with this so try this letter and see how you get on

Thanks - but there is no point in telling them the account is in dispute unless I can produce a reason for it to be so - they have complied with CCA78, and the failure to send statements would doubtless be remedied immediately.

I'm afraid I need more than bluster to take them on - which is why I'm asking for an opinion on the validity of the this original copy of my agreement which is unsigned

http://www.pbase.com/lastlight/original_agreementt