CoffeeAngel -v- Halifax Credit Card - Claim form now issued

[citizenB]

The SAR, have they reached the 40 calendar days allowed yet ?

[coffeeangel]

The SAR, have they reached the 40 calendar days allowed yet ?

 

Hi CB - yes we are now at T-2 days for compliance!

[citizenB]

Hi CB - yes we are now at T-2 days for compliance!

 

Ooh, nice one.. Well I guess now is the time to send the LBA, giving a further 7 days.

 

That way you will be seen as being reasonable. You can follow FUAFB's thread in respect of non compliance.. The OP was in a similar position to you where the creditor had issued a claim against them, whilst they themselves had failed to comply with the SAR..

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?208966-Me-and-Them-SAR-non-compliance-claim.-**SUCCESS**

[coffeeangel]

Ooh, nice one.. Well I guess now is the time to send the LBA, giving a further 7 days.

 

That way you will be seen as being reasonable. You can follow FUAFB's thread in respect of non compliance.. The OP was in a similar position to you where the creditor had issued a claim against them, whilst they themselves had failed to comply with the SAR..

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?208966-Me-and-Them-SAR-non-compliance-claim.-**SUCCESS**

 

Given how strongly worded the last letter I sent to them was, I'm really not feeling "reasonable" at all BUT, fair play, I will let them have another 7 days and then the gloves are off!

 

Thanks for the link to FUAFB's thread - I have been searching for something like this!

 

Best,

 

Coffee:angel:

[coffeeangel]

Well I sent the letter before action and low and behold yesterday Mumma signed for special delivery from Halicarp. Having looked through it I have made the following observations:

 

1. There are charges on the credit card but I am yet to input it into the cals spready to see how much it totals, but definitely counterclaims the balance they are seeking in their claim.

 

2. No T&C just the a poor copy of the application form which is signed by me.

 

3. No copy letters of letters intending legal action

 

4. No copy of Notice of Default or Default Notice.

 

So looks like ANOTHER letter saying erm "cooee you haven't fully complied"!

 

That is all for now. Will update once I cal'd the charges.

 

Good weekend to all.

 

Best,

 

Coffee:angel:

[coffeeangel]

Quick question on the charges element. Can still send in a reclaim for the charges even though they have issued court proceedings? Would that be seen as a counterclaim? Or do I just do my cals, sit tight and use it in my defence?

 

Thoughts/advice?

 

Best,

 

Coffee

[AndyOrch]

I personally would use it to mitigate their claim it would cost you to issue a CC Coffee.

 

Regards

 

Andy

[coffeeangel]

Morning Andy and welcome back! Hope you had a lovely holiday.

 

I did wonder as we discussed counterclaiming in previous posts but just wanted to double check.

 

Thanks Andy and have a good day.

 

Best,

 

Coffee

[coffeeangel]

Ok so update time.

 

Got home tonight and there it was on the kitchen table, my CPR response sent second class post. What they have provided is:

 

(a) Copy of original agreement (what I got in my SAR pack);

(b) recon jobby of t&c applicable at time the account was open; and

© Template copy of the style of Default Notice issued together with a screen print of the Bank's system confirming the issue of the DN. They say a copy of the original DN is not retained by the Bank.

 

Now my question are:

 

(1) Given I don't remember receiving a DN from them how can they prove I received it?

(2) Having just checked my copy of my credit file for all the CRA's, the date on which their screen print shows they "sent" the DN does not correspondence with the date of Default on my CR and is out by several months. Can someone please explain to me if this as how it should be? Why is that Banks do not keep actual paper copies of these types of correspondence given that it is within a 6 year limitation time period? Can they get away with that?

 

Now I have totted up the charges and input them into the calcs spready but I am confused as to which APR I should be using - the one I was charged when I first opened the account or the one they are using now? Either way, the amount they are suing me for is out by over £2k. Will this be good enough to get their claim set aside? Has anyone else been in this kind of situation and if so, what was the outcome? I know it will greatly depend on how I word my defence but I will also need to be able to explain myself in front of a judge and hope that judge is not swayed by the Bank.

 

Also the thing with their right of set-off. Now they raped my account on many occasion, and I will be going through both the card statements and my bank statements to tally up when this occurred but all I know is I experienced great hardship and even though I explained that to them at the time they never once put the money back even though they knew I didn't have any money to live on or feed my kids. Can I use that against them to do you think?

 

Thoughts and advice greatly appreciated as always.

 

Best,

 

Coffee

[coffeeangel]

Oops forgot to say, they also enclosed copy of t&c applicable now.

 

Coffee

[citizenB]

In respect of the interest rate charged.. what I do is to find out the different rates. Then add those into one sum, then divide by the number of different interest rates and use that figure. If you are unhappy with the outcome of that figure.. use the last one applied and let them sort it out

[citizenB]

Alomst certainly it would be a breach of OFT guidelines that they prioritised their account and denied you to the right to to pay such things as rent/mortgage - Council tax - utilities and food for your family.. these are all priority debts.

 

With respect to the Default Notices. Almost certainly they used to retain them.. only when it was discovered that they were issuing such rubbish did they resort to NOT keeping them. That way they can basically say what they like..

 

How on earth can you be certain that they posted on the same day as they issued it. That they gave you the correct amount of time to remedy the breach. That the amount they were claiming at that time was in fact just arrears and not the full balance or that the DN was issued in the statutory format?

 

As a matter of interest, on what date did they say they issued/posted it ? and did they give any indication of what date the remedy date was ?

[coffeeangel]

Thanks for stopping by CB.

 

Do you mean on the statements or the agreements? The copy statements they have sent me don't detail the interest rates. I may one or two old statements in my bundle of papers which unfortunately is locked in my drawer at work so I can't check right now but will do so tomorrow but I don't know if that will help at all. Or, do I use the two different interests - the one applicable to the agreement at inception and add it to the interest rate applicable now and then divide that two?

 

Also, the way they detail the interest rates on balance transfers, cheques, cash advances and purchases is a bit confusing. I will upload these tomorrow as I don't have the facility to do it at home (must get a printer/scanner if I can find one cheap) and if you could take a look I would be grateful. I will also upload the copy of the original agreement, the recon of the default notice and also the screen print (minus my personal details) and would be grateful for your thoughts/advice on these documents.

 

Best,

 

Coffee

[coffeeangel]

And of course they knew that at the time but just figured old Coffee for a muppet (which I clearly was back then) and so took from me what they shouldn't have!

 

Haven't managed to work out to do individual quotes yet but why doesn't that surprise me in regards to the DN! No doubt what they sent me was probably utter rubbish and would not be worth the paper it was writtn on.

 

Exactly as you say CB, how can I be certain they complied and did give me the correct amount to remedy, the correct time frame within which to do so and also that it was in the correct DN format!

 

There is a difference of 6 MONTHS between the date on the screen shot purporting to have sent the DN to the date that is ACTUALLY showing a Default on my CR. Surely that must set off alarm bells as if that is not the case then why did they wait 6 MONTHS to put it on my CR file??

 

Coffee

[coffeeangel]

I'm gonna have a bit of a search to see if I can find a DN from back when they purport to have sent me mine as its probably a safe bet that they all looked exactly the same as they are just generic. Will let you know if I find one.

 

I would ask for someone to come forward if they have one and do a bit of show and tell but then it would mean I would divulging too much information as to exactly what year the DN was issued and I know perfectly well that these "establishments" spy on this forum!

 

Coffee

[citizenB]

Apparently it is ok to use the last interest rate they applied to the statement .

 

Have you got a spread sheet ? I have attached one below JIC

 

[ATTACH]31585[/ATTACH]

[coffeeangel]

Hi CB,

 

Yes, I have got a calcs spready.... I did two spreadsheets using the two different interest rates so I will use the one that is apparently currently and applicable now.

 

I'm gonna go and scan in the documents I have on me at work (numpty me forgot to the sheet with the screen shot and template DN notice on my bed this morning! Doh! - I will type that up tonight exactly as is and then I will try and use one of the free online pdf facilities to upload as a pdf if that makes sense!).

 

Be right back!

 

Best,

 

Coffee

[coffeeangel]

Sorry for the delay, the last couple of days have been hectic to say the least.

 

Anyhoos, attached are the documents Halicrap sent in response to my CPR 31.14 request.

 

My concern/confusion is relation to the DN. As you will see from the screen shot they attached to the blank template DN, the date they say the DN was sent is in February 2008 but on my CR it states the DN date as August 2008. My question is why did they wait 6 months before they notified the CRA? Also, there is nothing in the communication logs to show what the amount requested on the DN was, if it was for the arrears only which, I understand should only be for the genuine arrears and shouldn't include default charges or late payment fees or, if for the full amount; no detail of when I had to comply by. The blank DN template they have sent doesn't help in shape or form as with the absence of this information I just can't tell. I can only go by the amount on the copy statement at the time which does include default/late charges and if they issued me with a DN in February 2008 the amount on the statement is less than the sum they have registered on my CR. Does this make any difference?

 

I recently read on another thread on here "Cabot - Halifax Credit Card now started Court Action" (which I am still wading through as it's quite a long thread) something Caro commented on in which she said "and as they don't keep DNs I believe the courts will accept witness statements re DNs etc. If they believe you borrowed the money they don't seem too worried about dotting the i's and crossing the t's. If there was no DN or a faulty DN then it is very easy for this to be put right, and a court will adjourn a case to allow this to happen". How in Gods name is that fair to the Defendant?

 

There is clearly a discrepancy between what the communication logs say and what they have on my CR paperwork. Can this be used in my defence? Any thoughts and/or advice on this please?

 

Also on looking at the communications log of Blair, it shows that they were instructed to issue the claim the same day they would have received my SAR and but there is no record on either Blair or Halicraps communication logs of even acknowledging my SAR - shouldn't that be there too? On the communication logs it says they generated debt chasing letters, but there were no copies of these in the SAR pack. So just as with the DN, how can they be certain I even received any of these? I know that the onus of proof lies with the Claimant, but is what they supplied enough? Yes they have supplied a copy of the credit card application which does bear my signature I'm not doing down the road of disputing that. My argument is that I don't recall receiving a DN. I know at that time the phone calls were constant, but I had a medical emergency and explained that to them. I did also have an arrangement to pay and it is only until recently I had to stop paying due to having to meet expenses for my kids, being behind with priority debts i.e my mortgage I just couldn't afford to pay. I fully intended to get back on track with that, but also I wanted to see what charges had been added, if I did have any ppi etc that I could claim back, which would reduce the debt. Should not the fact that they received my SAR have put an instant halt on any kind of action, either continued debt collection and/or issuing a claim? Can someone give some advice on this point?

 

I need to start formulating and drafting my defence (if I even have one at all) as it needs to be with the Court by 30th November and so I don't have much time left.

 

Thoughts and advice greatly appreciated.

 

Best,

 

Coffee

Copy CCA with Terms and Conditions Applicable Now (BoS).PDF

Halifax Credit Card Application .PDF

Copy CCA with Terms and Conditions Applicable at Time of Opening Account (Halifax).PDF

Screen Print attached to Blank Template DN.PDF

[citizenB]

Observations ..

 

The first (apparently current) terms and conditions. There is a date code on the last page 09/07 - 10/08

 

The 2nd (apparently from inception) terms and coditions. The date code on the last page is 08/03 - 06/04. Would that be around the time you opened the account ?

 

The screen print - right hand side where they have the date they allegedly produced the Default notice .. is that a time code underneath ... 2.48 ... or is it extended into a further reference. ?

[citizenB]

I will send out some S.O.S's for you.

[citizenB]

Your 'agreement' is an application form. The issue being an application form can be enforceable if the prescribed terms of credit limit, interest rates and repayment details are part of the same document. If they are in a separate document, the agreement is irredeemably unenforceable by s.60/s.61/s.65/s.127(3) CCA 1974. They will argue that the terms are part of the same document, therefore the agreement is enforceable. You need to argue against that. This is why I'm saying you need to research and come up with your Defence - no longer is a 'template' defence suitable in these cases, as they just won't work.

 

 

Interesting post from car2403 on another thread.. ! Your terms and conditions are separate from the "application" form !

[coffeeangel]

Observations ..

 

The first (apparently current) terms and conditions. There is a date code on the last page 09/07 - 10/08

 

The 2nd (apparently from inception) terms and coditions. The date code on the last page is 08/03 - 06/04. Would that be around the time you opened the account ?

 

The screen print - right hand side where they have the date they allegedly produced the Default notice .. is that a time code underneath ... 2.48 ... or is it extended into a further reference. ?

 

Hi CB

 

Yes it's a time stamp, I think as it gets cut off at the right hand margin.

 

Yes the account was opened around that time.

 

Best

 

Coffee

[coffeeangel]

I will send out some S.O.S's for you.

 

Thanks CB

 

Coffee

[coffeeangel]

Interesting post from car2403 on another thread.. ! Your terms and conditions are separate from the "application" form !

 

Yes they are so that's good right?!

 

Which thread was that CB and was the person successful in using this as part of their Defence?

 

I will add this to my research and reading list!

 

Thanks CB!

 

Best,

 

Coffee

[AndyOrch]

Hi Coffee responding to your PM.

 

How are you getting on with your figs debt v unfair? Don't concern yourself with what they have disclosed they have nothing apart from a signed application form.

Concentrate on finalising your figs then we can prepare a defence to see them off.

 

Regards

 

Andy