HBOS and OH's card debt

[lexis200]

Ok, so if I'm understanding this correctly, I could have a punt at claiming the lot as long as we weren't in court, and it may or may not work. If however it does go to court, anything above the 6 years would very likely be contested, but the charges within the last 6 years could at least go towards the balance (that is assuming the verdict didn't go in our favour).

 

But, if it went to court, did go in our favour, and the agreement was declared unenforceable, would that null any possibility of reclaiming afterwards?

 

What I really need to know though is should we even be considering claiming when we're going along the unenforceable route? I'm very confused with this whole area as there seems to be a different thought on it every time you look. Also, I've never made a charges claim before - it only occurred to me yesterday when I was flicking through OH's statements, so I have no idea what I'd be getting myself into if I did go ahead with charges!

 

As always, thanks for your help!

 

ps - cheers CB:)

[angel_1]

hiya lexix hope you are okay still fighting this madness here

 

your post 69 has also struck a chord with me, ive been thinking the same actually, so interested to see others views

 

ive been following your threads with interest this week,

 

im off to update and start a few new ones req for cca's

 

catch up later take care and keep calm, remember the sign of a cluttered desk is the sign of a Genius!! lol

 

well thats what it says on my desk..hahahha

 

ciao for now to you and others you have been helping you MAZ

[citizenB]

Lexis, my action plan would be.

 

Send X20's letter in post 58 and see what happens next.

 

I think your next step will be dictated by their response.

 

It wont do any harm to make up two spreadsheets one for charges for the life of the account to date and one for the 6 years. It will keep you out of mischief if nothing else:D

[surfaceagentx20]

Lexis,

The answer to your query in post no69 is whether you are defending by seeking to set off against the amount claimed a sum of money which is due to you, or whether you are counterclaiming for it. I won't go into the niceties of set offs right now, but it seems to me that a set off is available to you in this case since the charges and contra charges arise out of the one agreement.

 

Another way of looking at it is like this. Suppose a bloke I'd lent £100.00 to ten years ago sued me for £50.00 owing to him by me from three years back. I could theoretically defend the entire claim by saying the £50.00 I gained was in part satisfaction of the debt created ten years ago and I don't owe him a bean. On the other hand I could not counterclaim for £100.00 because my counterclaim would be met with a limitation defence.

 

Is the penny dropping?

 

In short, my suggestion is to employ all (ie from inception of the agreement) excessive charge arguments as a defence by way of set off. I wouldn't bother counterclaiming.

 

I hope this helps and is not getting overly complicated!

 

x20

[lexis200]

Lexis,

The answer to your query in post no69 is whether you are defending by seeking to set off against the amount claimed a sum of money which is due to you, or whether you are counterclaiming for it. I won't go into the niceties of set offs right now, but it seems to me that a set off is available to you in this case since the charges and contra charges arise out of the one agreement. My brain hurts already!

Another way of looking at it is like this. Suppose a bloke I'd lent £100.00 to ten years ago sued me for £50.00 owing to him by me from three years back. I could theoretically defend the entire claim by saying the £50.00 I gained was in part satisfaction of the debt created ten years ago and I don't owe him a bean. On the other hand I could not counterclaim for £100.00 because my counterclaim would be met with a limitation defence. I think you're saying that if they took OH to court, we could say something along the lines of 'you've had 10 years of dodgy charges, we want them back, then you can consider going after the balance'. This would be used as a defence to put them off going ahead, or to limit the damage if they did??

If however we were to just dispute the charges as a normal claim, they'd be more able to dispute the earlier ones

Is the penny dropping? erm, you tell me - have I got it right this time?

 

In short, my suggestion is to employ all (ie from inception of the agreement) excessive charge arguments as a defence by way of set off. I wouldn't bother counterclaiming. So don't bother going for charges unless they take OH to court and it's as a defence tactic?

 

I hope this helps and is not getting overly complicated! No no, if you whack me with information enough times it does eventually go in. Usually:D

 

x20

 

CB - I have done the OFT complaint letter - one regarding BOS and one for BlairOS (not sure if it should be just about one of them or both, seeing as they're both employing the same tactics and holding to the same lines). They're ready to go.

-I've sent off the form etc to the Information Commissioners Office about the state of the envelope and the visible contents.

-I've printed out yours/x20's letter and that's ready to go too.

 

Now I just need to do the FOS complaint about BOS since they've given their final response (that looks like an all nighter so I'm planning that for the weekend!), and the response to BOS so that they can't claim they didn't know what was going on.

 

I did the spreadsheets yesterday evening, that's what sparked my questions:D I wasn't in a letter drafting mood so I did a bit of brainless data input work instead;)

 

Now I need a cup of tea and a biccie - I made some shortbread yesterday and it's calling me...

[citizenB]

Sounds like you have it all under control Lexis..

 

The letter to the OFT, I think if you wanted to you could have incorporated the both in the one letter. I did. However, no problem doing one for each as they could also be 2 separate complaints.

 

Yes, the FOS letter will need time I think. If you follow RMW's format, I dont think you can go wrong.

[lexis200]

Ahh, well I didn't think of putting both in one letter did I:rolleyes:

 

I'll get that amended - at least it'll be one less postage cost to pay; that's fast becoming our major expense through the month. If I have to do another I/E form for anyone I think I'll include that on it:D

[citizenB]

Ahh, well I didn't think of putting both in one letter did I:rolleyes:

 

I'll get that amended - at least it'll be one less postage cost to pay; that's fast becoming our major expense through the month. If I have to do another I/E form for anyone I think I'll include that on it:D

 

 

I do believe RMW included the costs of stationary, postage etc in her complaint to the FOS. Obviously you can only include those costs associated with the company you are complaining about.

[lexis200]

Okay

 

Quick update on this...

 

I sent the dispute letter in October, outlining the lack of prescribed terms, illegibility etc. They received this on the 10th Oct.

 

So far I've heard diddly squat from them - they haven't even updated the address, which they have been informed of twice now.

 

The thing is, so far OH has carried on with payments - should I get him to stop them to try and kick them up the bum a bit, or do I give them a chance and tell them if they don't reply, payments will be stopping on X date?

 

I think I should be making this a formal complaint to them now anyway as they haven't answered the account in dispute letter from a month ago, and haven't changed the address despite being told we do not live there any more.

 

Any ideas from anyone would be appreciated:)

[lexis200]

I'm a bit confused with my paperwork!

 

I sent a 'no cca received' letter to BlairOS on the 7th October stating all the usual bits about unenforceable unless one is produced etc.

 

On the 17th OH received the above form from BlairOS along with a compliments slip.

 

Around the 28th OH received a letter from Halifax stating they are 'sorry to learn of your dissatisfaction at our apparent failure to provide the documentation you requested under section 78 etc... Whilst we are in breach of your request we may not enforce the agreement, which means that we cannot take court action or force you to pay. We can continue actions that are not deemed as enforcement.' etc etc.

 

On the 30th I sent the above letter to BlairOS about the lack of t's and c's etc.

 

On the 7th November OH has another letter from Halifax saying they're still looking into the complaint, sorry it's taking so long, and we'll have an answer for you by the 4th December.

 

Any ideas what the hell is going on anyone?? I'm kind of getting the impression that it's a complete shambles in the Halifax/BOS court, and they have no idea what each other are doing. Is this likely to be the case, or can anyone read something else into the oddness of these timelines and responses?

 

Just to confuse them a little more I SAR'd them on the 6th, so that'll probably send them into some sort of meltdown:D

[lexis200]

Hello!

 

Still working on the FOS complaint - 'real' work and family stuff is getting in the way:(

 

I'm just being a bit cheeky too and posting a link to my BOS thread, and my Cap1 one, where I could do with a bit of advice....any takers?

 

http://www.consumeractiongroup.co.uk/forum/halifax-bank-bank-scotland/160990-lexis200-bos-take-two.html

 

http://www.consumeractiongroup.co.uk/forum/capital-one/164241-lexis200-capital-one-cca.html

 

Thanks:D

[lexis200]

Just done a covering letter to BlairOS about the NIP - almost entirely ripped off from CB's earlier post, thanks:D (sent off the scary CPR one last week:eek:). Can anyone just give it a once-over before I print please?

 

Your letter dated 23rd October was received by me on the 30th October.

 

As both your company and the Bank of Scotland have failed to supply me with information requested under the Consumer Credit Act 1974, and have attempted to mislead me into believing it complies with your obligations under the Act, this has left me with no option but to make a formal complaint to the Financial Ombudsman Service.

 

Your letter will be passed to the FOS to aid their investigation.

 

Please also find enclosed a copy of a letter I have today sent to the Office of Fair Trading regarding your conduct. The letter is self explanatory.

[angel_1]

hiya lexis am following your threads and wow you have come such a long way

 

im on the fos cases myself this morning,

 

with this one of yours, i would make a formal complaint then you do have a paper trail as such, and also they Have to send you a final letter or refer you to fos, i would also request a copy of their Complaints proceedure too, within your letter - you then can see what they are obliged to do and timescales on the complaint being handled in line with the FSA rules,

 

** just another thought, perhaps a complaint to the information commissioner office too, as they are holding inaccurate data on you and this could lead to legal paperwork that may be sent not reaching you and this could cause you embarrasment or legal problems, as they still have not amended your address correctly***

 

hope that is of some assistance, sure other s more experienced will soon come along

 

will pm you later today ciao for now MAZ

Edited November 12, 2008 by maz1964
to add bit about info comm office

[citizenB]

I would have stopped paying the minute they sent the rubbish in your first post. However, this has to be your choice. I have noticed that stopping payment does tend to get them to focus their mind on the problem;)

 

Yes, definitely make a formal complaint. Head any correspondence to them ACCOUNT IN DISPUTE - FORMAL COMPLAINT. If you are going to stop payments, do it immediately and advise them in your letter that until the dispute and all the points you raise are sorted to YOUR satisfaction then no further payments will be made. Advising them you are going to stop payments at a future date is IMHO not a good idea.

 

PS. You can also request that if it is their intention not to investigate, fully, your complaints then would they advise their final response at the earliest opportunity in order for you to escalate your complaint to the FOS.

[citizenB]

Nice one Lexis, good to go IMHO

[lexis200]

Lovely, thanks CB.

 

I have another one for you now:D This is just to hbos as a general gripe - not for any response, but so it's in black and white what my issues are.

 

Then I really have to do some work!

 

Thank you for your letter dated 30th October, received by me on the 31st October.

 

I am responding to your letter only as a courtesy to let you know how I will be proceeding, as the response you have offered is far from satisfactory.

 

First, with regards to my details arriving in a poor condition. The envelope may have left your offices in reasonable condition, however, it could well be expected that if you send a standard paper envelope through the postal system, when it has been tightly packed with documents, that it will suffer due to that. Your company should employ a stronger container when you are sending personal and financial information. To assert that Post Office staff must sign the Official Secrets Act is nonsense, as my concern is not that they would talk about it to friends and family, but that it can be used to find out a significant amount of information about me. I am positive that you would not be happy to leave similar documents with your information on in full view in the Post Office, regardless of staff signing the Official Secrets Act or not.

 

This lack of security and your consequent disregard of my concerns have been passed on to the Information Commissioners Office.

 

Secondly, with regards to the ‘agreement’. You assert that an illegible document, with no visible prescribed terms on it, and with a set of current terms and conditions, complies with your requirements under the Consumer Credit Act 1974 (the Act). This is simply not true, and your comment about this being ‘clearly explained’ in a previous letter is at best atrociously patronising, and at worst intended to mislead me into believing the document you have sent fulfils the remit set by the Act.

 

You also wrote that I have stated the copy was illegible, and you can send out another. This would obviously be a pointless exercise, as to date you have sent me three copies of the same illegible application form. I highly doubt sending it again will suddenly cause it to be legible and compliant.

 

The lack of a compliant agreement, your attempts to mislead me, and your handling of my concerns in general is being escalated into a complaint to the Financial Ombudsman Service.

 

The third point I must raise regards my details held with Blair Oliver and Scott. The lack of a compliant agreement prohibits the passing of my details to any third party. Without a signed, legible agreement, complete with all prescribed terms and details of Data Protection, you do not have now, nor have you ever had my permission to pass on my details. I therefore reiterate that my details must be removed from their system. Is there any Act etc I can quote here?

 

You also state the account is not in dispute. The lack of a compliant credit agreement is a very clear dispute, and as such you may not enforce the debt, nor am I obliged to offer you any payment until the matter is resolved.

 

If this is not a clear enough dispute, then you will be aware that my complaint to the FOS also puts the account into dispute. Either way, you may not add charges or interest to the account, or place any markers regarding the account with any Credit Reference Agencies. Can I also put something along the lines of ‘similarly, any markers already placed should be removed, as you have not ever had the right to place them’?

 

I am aware your last response was the Bank of Scotland’s final decision, so I will reiterate that this letter is merely a courtesy.

 

I would though also like to make mention of the many grammatical and punctuation errors contained within your response. This in itself suggests a lack of interest in my case, as you do not appear to even take the time to proof-read your letters before sending them out. It also does not help at all with my current view of your company in general. As a professional company these sorts of mistakes should not occur.

[lexis200]

Okay, just told OH to stop the payments. And I'll consider my wrist slapped:)

 

The only reason I didn't was cold feet - I completely copped out:oops:

 

I'll get another complaint out to them and merge what the two of you have suggested in it, then I expect go down the same route as with the other one you've been helping on! At least I'll have some letters ready done for them:)

 

Cheers

 

Lexis:)

[lexis200]

Seeing as my cheekiness with my other posts worked so well, I thought I'd drop in my newest - my own personal bugbear, the co-op...

 

If you're not too busy, I'd be very glad of a more experienced opinion than mine from anyone:D

 

http://www.consumeractiongroup.co.uk/forum/cooperative-bank/168075-lexis200-co-op-cca.html

 

Lexis:)

[citizenB]

Lovely, thanks CB.

 

I have another one for you now:D This is just to hbos as a general gripe - not for any response, but so it's in black and white what my issues are.

 

Then I really have to do some work!

 

Thank you for your letter dated 30th October, received by me on the 31st October.

 

I am responding to your letter only as a courtesy to let you know how I will be proceeding, as the response you have offered is far from satisfactory.

 

First, with regards to my details arriving in a poor condition. The envelope may have left your offices in reasonable condition, however, it could well be expected that if you send a standard paper envelope through the postal system, when it has been tightly packed with documents, that it will suffer due to that. Your company should employ a stronger container when you are sending personal and financial information. To assert that Post Office staff must sign the Official Secrets Act is nonsense, as my concern is not that they would talk about it to friends and family, but that it can be used to find out a significant amount of information about me. I am positive that you would not be happy to leave similar documents with your information on in full view in the Post Office, regardless of staff signing the Official Secrets Act or not.

 

This lack of security and your consequent disregard of my concerns have been passed on to the Information Commissioners Office.

 

Secondly, with regards to the ‘agreement’. You assert that an illegible document, with no visible prescribed terms on it, and with a set of current terms and conditions, complies with your requirements under the Consumer Credit Act 1974 (the Act). This is simply not true, and your comment about this being ‘clearly explained’ in a previous letter is at best atrociously patronising, and at worst intended to mislead me into believing the document you have sent fulfils the remit set by the Act.

 

You also wrote that I have stated the copy was illegible, and you can send out another. This would obviously be a pointless exercise, as to date you have sent me three copies of the same illegible application form. I highly doubt sending it again will suddenly cause it to be legible and compliant.

 

The lack of a compliant agreement, your attempts to mislead me, and your handling of my concerns in general is being escalated into a complaint to the Financial Ombudsman Service.

 

The third point I must raise regards my details held with Blair Oliver and Scott. The lack of a compliant agreement prohibits the passing of my details to any third party. Without a signed, legible agreement, complete with all prescribed terms and details of Data Protection, you do not have now, nor have you ever had my permission to pass on my details. I therefore reiterate that my details must be removed from their system. Is there any Act etc I can quote here? I think it is S10, Lexis. I will get the correct information and put it here later on.

 

You also state the account is not in dispute. The lack of a compliant credit agreement is a very clear dispute, and as such you may not enforce the debt, nor am I obliged to offer you any payment until the matter is resolved.

 

** If this is not a clear enough dispute, then you will be aware that my complaint to the FOS also puts the account into dispute. Either way, you may not add charges or interest to the account, or place any markers regarding the account with any Credit Reference Agencies. Can I also put something along the lines of ‘similarly, any markers already placed should be removed, as you have not ever had the right to place them’? ** I wonder if this would be better moved up a bit to where you mention Data Protection Act regarding Blair Oliver ?. It, is I think part of the same issue.

 

I am aware your last response was the Bank of Scotland’s final decision, so I will reiterate that this letter is merely a courtesy.

 

I would though also like to make mention of the many grammatical and punctuation errors contained within your response. This in itself suggests a lack of interest in my case, as you do not appear to even take the time to proof-read your letters before sending them out. It also does not help at all with my current view of your company in general. As a professional company these sorts of mistakes should not occur.

 

:grin: I love the last paragraph.. nice one BRB with the information re data protection.

[citizenB]

Lexis, I hijacked this from another thread.. hope this helps.

Data Protection Act

 

You have previously been given notice under Section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

Would you kindly confirm that you have complied with my earlier request (letter dated 2 June 200:cool: to remove all information regarding this account from your own internal records and from my records with the credit reference agencies and that the default notice you have placed on my credit file, together with the adverse markers, have been removed.

 

If you refuse to comply, then I will commence proceedings against you under ss13 and 14 of the Data Protection Act 1998. I shall also be claiming damages for adverse credit processing and defamation of character as the Co-operative Bank plc are in breach of the Fraud Act 2006.

 

Love and kisses

[citizenB]

It is a difficult decision to make whether or not to stop payments, Lexis.. so you didnt cop out really.

[lexis200]

Thanks very much for that quote, the amended letter is printing as I type!

[lexis200]

Okie dokie

 

Everything barring the FOS complaint is done and ready to go. Hopefully I'll have time to get it done this weekend, but the way things are shaping up at home it may have to wait a bit longer.

[lexis200]

This is going out tomorrow (today actually!) if you lot give it the green light!

 

It's really just a covering letter as I'm copying them the one I sent last month, so I don't want to be bothered writing the same things out again.

 

Lexis

 

FORMAL COMPLAINT

ACCOUNT IN DISPUTE

 

I wrote to you on the 7th October, and my letter was signed for at your offices on the 10th October. To date I have not had the courtesy of a reply regarding the illegible document you sent as a response to my legal request under the Consumer Credit Act 1974 (the Act).

 

The document you sent does not in any way satisfy your requirements under section 78 of the Act, and as such you still remain in default of my request, and the account remains unenforceable. I have enclosed my previous letter for your convenience, as it explains fully my reasons for coming to this conclusion.

 

I also asked you to confirm your statement ‘Please note that the information we have provided you with is all the information we are able to provide you with Under Section 78 of the Consumer Credit Act’. Again, I ask that you confirm you do not hold a compliant signed agreement relating to this account.

 

I also informed you that the address you hold is incorrect, and you should now be using the one above. You are still sending statements to the old address. This is unacceptable.

 

I must advise you now that until this dispute is settled to my satisfaction, no further payments will be made to this account. I am within my rights to withhold payments whilst the account remains unenforceable and you remain in default of your duties under the Act.

 

I would ask that if it is not your intention to fully investigate my complaints, that you advise me of your final response at the earliest opportunity in order for me to escalate my complaint to the Financial Ombudsman Service.

 

Also, please ensure you enclose a copy of your standard complaints procedure so that I am aware of the timescales afforded to you.

I look forward to your prompt reply.

 

Edited November 13, 2008 by lexis200
forgot to paste letter:)

[lexis200]

Just checked RM and the SAR only got to them on the 10th, by 1st class post. How irritating:mad: