CCA/true copy dispute with Haliprats

[findingthecheese]

Hi everyone!

 

I'm new to posting but I've been an avid follower for a while now!

 

I've followed the excellent advice given on this site and requested a copy of my CCA from Haliprats.

 

What they sent back was a copy of an agreement with a blank signature box, containing my current address

(obviously not a true copy as I didn't reside at that address when the supposed agreement was entered into).

 

I wrote back to both Haliprats and BOS (dca) explaining that this was not a true copy and therefore unenforceable.

 

In response Haliprats have tried to blind me with legal jargon, quoting statutory sections and subsections etc.

 

it all boils down to them saying that what they've sent me is sufficient and therefore enforceable.

 

They also pointed out that the fact that I'd had the ccard for a number of years and made regular payments was sufficient evidence for use in any court proceedings!

 

I'm at work at the moment and won't be able to upload a copy of their letter until next week - but does anyone have any thoughts in the meantime puleeze???

 

I'm trying not to panic as I've not actually read the letter myself

(my mum read it out loud down the phone, in a rather shaky voice it has to be said),

but my heart is beginning to beat a wee bit faster everytime I think about it!!!

 

Are they spinning me a line and using my ignorance of the law to hang me???

[paulwlton]

Hi everyone!

 

I'm new to posting but I've been an avid follower for a while now! I've followed the excellent advice given on this site and requested a copy of my CCA from Haliprats. What they sent back was a copy of an agreement with a blank signature box, containing my current address (obviously not a true copy as I didn't reside at that address when the supposed agreement was entered into). I wrote back to both Haliprats and BOS (dca) explaining that this was not a true copy and therefore unenforceable. In response Haliprats have tried to blind me with legal jargon, quoting statutory sections and subsections etc. Basically it all boils down to them saying that what they've sent me is sufficient and therefore enforceable. They also pointed out that the fact that I'd had the ccard for a number of years and made regular payments was sufficient evidence for use in any court proceedings! I'm at work at the moment and won't be able to upload a copy of their letter until next week - but does anyone have any thoughts in the meantime puleeze???

 

I'm trying not to panic as I've not actually read the letter myself (my mum read it out loud down the phone, in a rather shaky voice it has to be said), but my heart is beginning to beat a wee bit faster everytime I think about it!!! Are they spinning me a line and using my ignorance of the law to hang me???

 

The copy you've received is unenforceable if it doesn't include your signature?.

 

PM a mod they'll move the thread to the general debt forum.

 

Paul

[findingthecheese]

Thanks Paul!

 

Will do - total novice (as you can no doubt tell)!

[findingthecheese]

Hi Paul it's me again!

 

Thanks for your advice - the next question is "how do I PM a moderator?"

 

Apologies for being sooo dim (I've only ever read posts and I'm totally new to actually posting anything myself)!

 

Ta

ftc.

[paulwlton]

Hi Paul it's me again!

 

Thanks for your advice - the next question is "how do I PM a moderator?"

 

Apologies for being sooo dim (I've only ever read posts and I'm totally new to actually posting anything myself)!

 

Ta

ftc.

 

Ive asked for your thread to be moved.

 

Could you post the agreement?

[findingthecheese]

Thanks again Paul!

 

I won't be able to post the agreement until next week (I work away during the week). I'll try to do so on Monday at work as I don't have access to a pc at home.

 

ftc.

[saintly_1]

Thread moved to General Debt Forum

[smt37]

Hi,

 

They think they are using your ignorance of the law to hang you, but actually, you've found CAG, so now you can turn the tables.

 

You should post a copy of what you received up here for someone to check. Use Photobucket, as you can erase sensitive bits online before posting.

 

It sounds like they don't have a signed copy and they need a signed copy to enforce the debt in a court. Let someone check it, stick to your guns and then send them this (copied from another thread):

 

Dear Sirs,

 

 

Account no xxxxxxxxxxxxxx

ACCOUNT IN DISPUTE

 

 

Re: my request under the Consumer Credit Act 1974

 

 

Thank you for your letter dated **********, the contents of which are noted

 

You attention is drawn to the fact that this account is subject to a serious dispute. On xx/xx/2007 I requested Halifax supply me a copy of the credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78. To date Halifax have failed to comply with my request and have totally ignored my written reminders sent via recorded delivery of this fact. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you or Halifax, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974

 

 

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…

 

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,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(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; and

(b) if the default continues for one month he commits an offence.

 

 

 

Clearly as no agreement was supplied on request, this in no way complies with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in s78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (3) Consumer Credit Act 1974 which states

 

127(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 (whether or not in the prescribed manner).

 

This 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.

 

 

To clarify s61(1) states

 

(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

© 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

 

In addition the prescribed terms referred to in section 60 CCA1974 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—

 

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.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

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced.

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as Capquest become compliant with my request. As Capquest are still not in compliance with my request I insist that the following takes place with immediate effect

• All charges levied since ******** 2007 be removed from the account and further charges cease until such time as ******* comply fully with my original request or such time as a court makes an enforcement order
  
• All entries which refer to missed payments be removed from my credit file
  
• All collection activities by your company cease with immediate effect until ******** comply with my request from ********* 2008 or such time as a court makes an enforcement order
  

In addition, I draw your attention to the Office of Fair Trading’s guidance on debt collection

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

What I Require.

 

I require that you send me a true copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well

 

No other correspondence will be accepted

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful

 

 

I trust this outlines the situation

 

Regards

 

[your name in capitals] DON'T SIGN ANY LETTERS

[findingthecheese]

Thanks smt37!

 

Can't wait to get home at the weekend, you've fired me up and reassured me!

 

I'll post a copy on Monday.

 

Apologies for the brief nature of my posts so far (due to working in a shared office!).

 

ftc

[findingthecheese]

Good morning everyone!

 

I've finally scanned copies of what Haliprats sent me in response to my request for a true copy of my CCA.

 

I wrote to them more than once pointing out that it was unsigned (they had even, incorrectly, inserted my current address on the document, echoes of back to the future methinks!)

and therefore was not a 'true copy' or even an accurate one.

 

The alleged debt was passed on to BOS

- I again wrote to them pointing out the above and that they were now in default.

 

This letter was passed back to Haliprats and attached is the latest letter in this long running saga....

 

I had been paying the alleged debt via CCCS,

but Haliprats started adding late fees and interest

- so the debt is now larger than the original outstanding amount!

 

One particularly miserable day I was surfing the net for complaints about these clowns and stumbled upon CAG! I think we all know the rest!!!

 

I don't believe the document attached satisfies my request for a 'true copy'?????

 

However, their latest letter has unnerved me slightly

...and I'm unsure of what my next move should be?

 

smt37, having seen the attached docs, should I still send your letter?

 

As ever, any advice is much appreciated.

 

ftc

Edited July 20, 2009 by findingthecheese

[findingthecheese]

Sorry to harp on, but re-read Haliprat's letter again (for the umpteenth time, they've really got to me) and a few things hit me!

 

1. They've used the wrong address in the alleged agreement

2. The alleged agreement appears to be a reproduction not a true copy

3. The alleged agreement contains a blank signature box/is unsigned

4. The alleged agreement refers to £12 charges and late fees (surely not an accurate reflection of fees and charges 8 years ago!)

5. Is it actually an application form?

6. Haliprats did not become HBOS until 2001??? Therefore how can a copy of an agreement allegedly made 8 years ago refer to the Bank of Scotland?

7. At no time did I 'accept that I had been provided with a copy of my credit agreement'.

8. The alleged agreement cannot contain 'every material provision' of the agreement allegedly signed in 1998 for the above reasons

9. I thought that the guidelines did prohibit collection activity when an account is in dispute???

 

Rant over! Just had to get it off my chest...

 

ftc

[paulwlton]

Write and ask them to supply you with a copy that contains your signature.

[smt37]

Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) state that the signature doesn't need to be present on the copy they send you - however, they need to produce the signed one in court to get an order.

 

If they can't supply a signed copy, chances are, they haven't got one, otherwise they'd sent it unless they can't get their hands on it right now. Danger arises if they start court proceedings and you defend and then they turn up with the signed copy!

 

Even if they did, you would only be ordered to pay what you can afford, so there are no losers in this battle. Fight it to the end!

[findingthecheese]

Thanks for your replies paulwlton & smt37.

 

I did write to both Haliprats & BOS to request a signed copy, but received the response letter attached to my earlier post. So I'm not sure what to do next. Do I write again, ignoring the legalease contained in their response letter or do I need to respond to the points that they have raised? Or do I simply wait for them to make their next move???

 

ftc.

[paulwlton]

Thanks for your replies paulwlton & smt37.

 

I did write to both Haliprats & BOS to request a signed copy, but received the response letter attached to my earlier post. So I'm not sure what to do next. Do I write again, ignoring the legalease contained in their response letter or do I need to respond to the points that they have raised? Or do I simply wait for them to make their next move???

 

ftc.

 

 

I would make a SAR - they cannot hide behind the 1983 regs when supplying you with a copy of your agreement under the DPA.

 

PW

[findingthecheese]

Hi paulwlton!

 

I made a S.A.R. using the template letter found here (paid £10) at the same time as my CCA and received print-outs of cc statements along with the unsigned agreement above.

 

Should I resubmit?

 

ftc.

[paulwlton]

Hi paulwlton!

 

I made a S.A.R. using the template letter found here (paid £10) at the same time as my CCA and received print-outs of cc statements along with the unsigned agreement above.

 

Should I resubmit?

 

ftc.

 

So according to the data they hold on you they have no signed agreement - just an unsigned generic copy of their standard agreement.

 

I would send a non compliance letter and ask them to provide you with a copy of your original signed agreement as requested under section 7 Data Protection Act.

 

I would also make them aware that witholding information with the intention to make a monetry gain may constitute an offence under the Fraud Act 2006 and that you will if need be contact your local economic crime unit.

 

 

PW

[findingthecheese]

Thanks paulwlton

 

I will send a non-compliance letter again and ask them for a copy of my original signed agreement as per your instructions. Should I also complain to/cc trading standards at this point?

 

ftc.

[paulwlton]

Thanks paulwlton

 

I will send a non-compliance letter again and ask them for a copy of my original signed agreement as per your instructions. Should I also complain to/cc trading standards at this point?

 

If they refuse to send you a copy of your signed agreement under the SAR then you should make a complaint to the information commissionar's office.

[findingthecheese]

Thanks again paulwlton!

 

I will follow your advice and send the letter by registered post tomorrow.

 

I'll let you know the outcome.

 

ftc.

[findingthecheese]

This is my proposed letter to HBOS (thought I'd keep it short and not so sweet!):

Dear Mr C

Data Protection Act disclosure request

ACCOUNT NUMBER: ................................. – IN DISPUTE

Thank you for your letter dated 11th September, the contents of which have been noted.

HBOS is still non-compliant with my original requests for a true signed copy of my credit card agreement. A copy of the signed, original 1998 agreement should have been provided with my original S.A.R. The relevant statutory payment of £10 was made at the time.

I therefore write to request once again that you provide me with a copy of my signed contracts with you, and a copy of my original terms and conditions. I make this request under the Data Protection Act 1984 and 1998, and including the right of subject access under these acts.

I reserve the right to file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service.

[findingthecheese]

Hi everyone!

 

I've followed your advice and Hfx has written back to say that the CCA (see attached pdf in my earlier post) fully complies with my request. I wrote back to them saying it definitely did not as it was a copy of an application form with their current t&cs.

 

They have now written to say that they will no longer deal with me as I am a 'won't pay' and do not have a genuine dispute - I am simply trying to avoid repaying the debt!!! I have been told to contact their dca ASAP to discuss repayment and avoid court proceedings.

 

In the meantime their dca Blair Oliver have been sending me threatograms - the last one was a notice of intended legal action. This was allegedly sent on the 30th October but I didn't receive it until last week. Using the excellent advice on this site I have put together a pre-action protocol letter and request for disclosure (asking for a long list of information and documents, transcripts etc. (including a copy of my original, signed CCA). I posted this at lunchtime.

 

My question is: What do I do now? Hfx are adamant that the document they've sent fully complies. They've said that the court will agree with them.

 

Blair Oliver are ignoring all of my letters and claiming that I've been avoiding contacting them. This is not true, I have proof of delivery and copies of all letters sent, but if they ignore my latest letter and go ahead with court proceedings what can I do???

 

Any advice/reassurance gratefully received!

 

Thank you

ftc.

[Pipster2797]

just want to subscribe to this as going through a similar thing with Northern Rock

[paulwlton]

Have you asked if they have recreated the information from their records or have they copied the information from the original signed agreement.

[findingthecheese]

Hi again paulwlton & hi Pipster2797!

 

I didn't specifically ask if it was recreated or copied from the original but I did write to say that it appeared to be an application form, contained my current address and current t&cs (evidenced by the £12 charges). I also pointed out that it had not been signed by either party. I requested the original, signed agreement under a SAR and data protection act request.

 

Hfx have said this is their final response and if i'm not happy to take my complaint to the FOS. They've also said to contact Blair Oliver from now on...

 

ftc.