Is this Halifax CC agreement legal?

RAS

Hi

I do not see how this can be a Consumer Credit Agreement, as it appears to have been sent out with the card, with the option to cancel.

What you want is the document that was supplied to you are the point of application (not the application form), proving that when you made the application you knew the conditions of the contract.

Pentax

RAS wrote: »

Hi

I do not see how this can be a Consumer Credit Agreement, as it appears to have been sent out with the card, with the option to cancel.

What you want is the document that was supplied to you are the point of application (not the application form), proving that when you made the application you knew the conditions of the contract.

Hi,


I can't remember how I applied for the card (other than that it was all done by post)

I obviously sent off a signed application form (which, presumably, doubled as the agreement?) and duly received back a credit card and the document that I linked to.

The only other item enclosed was a copy of the T&C's for payment protection insurance.

Nothing else was sent by Halifax - I have been looking up the relevant bit of the CCA (dealing with statutory copies of CCA regulated agreements) and it appears (to my inexpert eyes) that the copy of the agreement returned with the card should have contained all applicable signatures

Quote:

"Copies of regulated agreements (ss62 and 63 of the Consumer Credit Act 1974)

When the debtor signs the agreement he or she must receive a copy of what he or she has signed. (the first statutory copy); if the creditor does not sign at the same time the debtor must also receive the second statutory copy, which is copy of the concluded contract with both signatures. within seven days of the creditor signing.

Where only the first statutory copy is required the creditor must send by post to the debtor within seven days of conclusion of the contract a notice of his or her right to cancel (if applicable)"

End Quote

I'd be really grateful if someone could give an expert opinion on this.

GeorgeUK

If you have charges on the account, i would send a SAR and request at the same time a copy of the original credit agreement. A copy of the CCA under s77/78 of the 1974 Act does not require signatures to be provided. They are required on a copy requested under the Data Protection Act (in a SAR).

If the records are stored on microfiche or any searchable data storage system, then the ICO has deemed this to be a "relevant filing system" under the act and the data must be provided in an fully legible form.

Edit:
CCA legislation: http://forums.moneysavingexpert.com/showthread.html?t=1496721

Pentax

GeorgeUK wrote: »

If you have charges on the account, i would send a SAR and request at the same time a copy of the original credit agreement. A copy of the CCA under s77/78 of the 1974 Act does not require signatures to be provided. They are required on a copy requested under the Data Protection Act (in a SAR).

If the records are stored on microfiche or any searchable data storage system, then the ICO has deemed this to be a "relevant filing system" under the act and the data must be provided in an fully legible form.

Edit:
CCA legislation: http://forums.moneysavingexpert.com/showthread.html?t=1496721

Thanks George - I will certainly be sending in a Subject Access Request.

I do understand that the copy (or what they like to *call* a copy) of the agreement obtained under CCA78 doesn't have to contain a signature - but what about this document

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

This the *original* copy of the agreement agreement as supplied to me in 2003 by Halifax

As it was sent to me with no signatures present does this make the entire agreement invalid?

If so, presumably it wouldn't matter what Halifax were keeping in storage, nor whether they have a signed agreement or not?

GeorgeUK

Usually when you take out a credit card, there are 3 stages.

1. Application - where you fill in your personal details
2. credit agreement - where they state what your limit, APR and repayment obligations
3. confirmation - issued when they send out the creditcard

It looks like this is a confirmation letter - not a credit agreement. It evens states "your new Halifax One credit card is attached". This is not an agreement.

You could send them the 12+2 day letter as they have not fulfilled their obligation to provide a copy of the CCA, or you could send the SAR - but if they find the the agreement and it has all the prescribed terms and your signature, the debt will be enforcable. You may be able to offer a reduced settlement in full and final settlement if that was the case.

I am trying to get my brother to send a SAR for a loan he has. This may be of use if you decide to send a SAR.
http://www.consumeractiongroup.co.uk/forum/scotland/184976-loan-charges-enforcability.html#post2000059

Broken_hearted

You may find even if they don't find the agreement they still won't back down.you just have to stand you ground.

Pentax

GeorgeUK wrote: »

Usually when you take out a credit card, there are 3 stages.

1. Application - where you fill in your personal details
2. credit agreement - where they state what your limit, APR and repayment obligations
3. confirmation - issued when they send out the creditcard

It looks like this is a confirmation letter - not a credit agreement. It evens states "your new Halifax One credit card is attached". This is not an agreement.

You could send them the 12+2 day letter as they have not fulfilled their obligation to provide a copy of the CCA, or you could send the SAR - but if they find the the agreement and it has all the prescribed terms and your signature, the debt will be enforcable. You may be able to offer a reduced settlement in full and final settlement if that was the case.

I am trying to get my brother to send a SAR for a loan he has. This may be of use if you decide to send a SAR.
http://www.consumeractiongroup.co.uk/forum/scotland/184976-loan-charges-enforcability.html#post2000059

Hi again George - thanks for the link, and thanks in particular for addressing the specific point I was asking about.

Are you sure that the 2003 document is not an agreement? It says 'copy of agreement', and it's the only thing I received from Halifax in respect of this account.

I'm labouring the point because;

Creditors are obliged to supply a statutory copy of an executed (post application stage) agreement regulated by the CCA 1974 which is signed and dated by both parties.

Obviously, the 2003 document contains no signatures, nor has provision for them.

Which can only mean;

1] statutory copies of agreements relating to credit cards differ from other CCA statutory copies and require no signatures, or;

2] This is a statutory copy that does not meet CCA requirements because the signatures are missing, or;

3] This is not a statutory copy at all - meaning that Halifax failed to send me such a statutory copy and therefore the agreement cannot be considered to have been properly executed.

My hope is that nos. 2 or 3 will prove to be the case - meaning that the agreement was never properly executed, and that it is unenforceable no matter how many signed copies Halifax might have tucked away.

Thanks for bearing with me on this - I realise that other people's battles can become labyrinthine and tedious, but I'd really like to get to the bottom of whether the agreement was flawed from day one.

Regards

GeorgeUK

Are you sure that the 2003 document is not an agreement? It says 'copy of agreement', and it's the only thing I received from Halifax in respect of this account.

Some people are send copies of their application form because it says "this is a credit agreement", but section 59 of the act states that an application form is not the agreement - unless it contains all the prescribed terms and is in the prescribed form.

Creditors are obliged to supply a statutory copy of an executed (post application stage) agreement regulated by the CCA 1974 which is signed and dated by both parties.

The 1983 legislation made it so that the 'copy' could omit the signature and it did not need to be an "exact copy". A reconstruction may be permissible as long as the details were taken from the original credit agreement and not just spurious data found on their system.

1] statutory copies of agreements relating to credit cards differ from other CCA statutory copies and require no signatures, or;

creditcards in this respect do not differ from any other agreement which falls under the act. The 1983 legislation makes it possible to omit the signatures in any copy.

2] This is a statutory copy that does not meet CCA requirements because the signatures are missing, or;

This is a copy of a letter, not a copy of the agreement. The letter is saying you have agreed to this so here is your card. Showing you what you have agreed to is not the same as supplying a copy of the actual agreement.

3] This is not a statutory copy at all - meaning that Halifax failed to send me such a statutory copy and therefore the agreement cannot be considered to have been properly executed.

This is not a copy of an agreement and have failed in their legal obligation under the act. If 12+2 working days have passed since they received the request, then the debt is in dispute and until the produce a copy of the CCA (which they may do), then the debt is unenforcable.

So far we haven't seen a copy of any agreement so can't say whether it is flawed or not. It is my opinion however that what they have sent is not a credit agreement and that the debt is unenforcable until they do send one.

Edit: I had another look at the scanned document. I wondered if they had sent you that letter with the card and there was another page for you to sign that stated you wished to be bound to the terms of the agreement. I can't imagine why they may issue a card before reaching an agreement, but this is the only way i think it could be argued that this letter actually is a CCA. Even then it should have a section for you to sign to state that you wish the agreement to go ahead instead of just a section for cancelling the agreement. I still think it's not a CCA they have sent you - is it that difficult to read in the format they have given you?

Pentax

GeorgeUK wrote: »

Some people are send copies of their application form because it says "this is a credit agreement", but section 59 of the act states that an application form is not the agreement - unless it contains all the prescribed terms and is in the prescribed form.

Hi George, your help is genuinely appreciated.

To clarify, Halifax sent me the second linked doc in 2003: http://www.pbase.com/lastlight/original_agreementt

It arrived with the credit card, and was presumably sent after I had completed and signed an application form. That document was all I received from Halifax in 2003. I have received further copies of updated T&C's as and when they were issued , but, as far as original copies of the agreement go - that 2003 doc is all that arrived.

Moving on to this year... when I decided to send in a CCA section 78 request I received the documents shown here: http://www.pbase.com/lastlight/halifax_documents

These were two copies of T&C's - one of which was worded identically to the 2003 document, the other copy was of later T&C's showing the reduced £12.00 penalty charge.

The 1983 legislation made it so that the 'copy' could omit the signature and it did not need to be an "exact copy". A reconstruction may be permissible as long as the details were taken from the original credit agreement and not just spurious data found on their system.

Thanks for clarifying that. Do your comments relate to *every* copy - eg, the 2003 version sent with the card, and the 2009 copies of T&C's sent in response to CCA78? As I understand it, every debtor with an agreement under the terms of the CCA 1974 is supposed to receive a statutory copy of the agreement with seven days of it commencing, and that statutory copy has to contain the signatures of all parties.

creditcards in this respect do not differ from any other agreement which falls under the act. The 1983 legislation makes it possible to omit the signatures in any copy.

Understood.

This is a copy of a letter, not a copy of the agreement.

Ah.... but is it? Why does it say, 'This is a copy of your agreement for you to keep'? Since they sent nothing else, and since they included the credit card with it, they must (preumably) have considered the 2003 doc to be my statutory copy of the agreement which I had previously signed (via an apllication form, I think)

The letter is saying you have agreed to this so here is your card. Showing you what you have agreed to is not the same as supplying a copy of the actual agreement.

Again, understood - but because [a] it says 'Agreement regulated by the CCA 1974', and because it was sent to me with the card, I'm having trouble imagining it not be a copy of the contract. They must have considered that had a signed contract in place or they would not have sent the card (unless they were completely mad)

This is not a copy of an agreement and have failed in their legal obligation under the act. If 12+2 working days have passed since they received the request, then the debt is in dispute and until the produce a copy of the CCA (which they may do), then the debt is unenforcable.

If I understand the above correctly, you are referring to their response to the CCA/78 request?

If the 2003 document was *not* the agreement then, yes, they must be in breach of the CCA request because they sent me identical information to that contained in 2003 doc, and if that is not the agreement, then neither is their CCA response (which containes the same T&C's) a copy of an agreement.

However, I'm sure they will argue that they have complied with CCA/78 and that they have sent me a copy (albeit an unsigned copy) of the orginal agreement.

As one of the CCA/78 responses matches the 2003 document, it would still seem that the 2003 doc *is* my statutory copy of the agreement.

Now, I understand what you said about copies not requiring a signature - but as far as I'm aware I was entitled to a receive a first statutory copy containing signatures, as per the requirements of the CCA? - a replica, in fact, of what I had signed, showing T&C's, dates, signatures - everything.

Thus, if they say that the 2003 document is the agreement, it cannot be properly executed because it contains no signatures.

Conversely, if the 2003 doc is *not* the statutory copy of the agreement, then what happened to it? - I was (according to the CCA 1974) supposed to have received it, and the agreement cannot be properly executed without me getting it.

So far we haven't seen a copy of any agreement so can't say whether it is flawed or not. It is my opinion however that what they have sent is not a credit agreement and that the debt is unenforceable until they do send one.

Hopefully you are correct - but I'm sure that they will argue that the 2003 doc and the subsequent CCA response *are* copies of an agreement.

Edit: I had another look at the scanned document. I wondered if they had sent you that letter with the card and there was another page for you to sign that stated you wished to be bound to the terms of the agreement. I can't imagine why they may issue a card before reaching an agreement, but this is the only way i think it could be argued that this letter actually is a CCA. Even then it should have a section for you to sign to state that you wish the agreement to go ahead instead of just a section for cancelling the agreement. I still think it's not a CCA they have sent you - is it that difficult to read in the format they have given you?

Are you clicking on the thumbnail to enlarge it? - it should be very easy to read.

Regards

RobboBTC

Hi, I have been reading this thread with much interest as I received a response from Halifax yesterday regarding CCA 1974.

The covering letter clearly outlined my credit limit etc & at the bottom it stated in bold

"Please note that the information we have provided you with is all the information we are required to provide you with under Section 78 of the Consumer Credit Act. Please also note that we are not required ro provide a copy of the original signed agreement under section 78 of the Consumer Credit Act".

Also enclosed was a copy of the agreement for me to keep! Within this there are no boxes / spaces for signatures etc.

Although I have read about this quite a bit now, it is still unclear to me whether Section 78 states that a signature does/does not need to be on the copy of the agreement that they have sent?

I have heard that Halifax are one of the most difficult to deal with & do all they can to put you off taking this issue further?? Whether this is true or whether they are in the right I am unsure!!

Any help would be very much appreciated.