Dodgy halifax CCA from Lowells now SD - ***Set a Side & 2k Costs awarded***

[dx100uk]

doesn't matter really

 

 

it a 'fake' doc/sig?

 

 

dx

[trout]

Doc 2 has my signature on it, but as I have said I believe it to be a cut and paste from an application form.

 

It does matter to me dx, because I have to form a response to Lowells demands ( they are demanding their money ), and also because they own another of my alleged debts.

 

Also, re defective DN's, I'm aware of the Harrison judgement ie defective DN's can often be remedied ( so not always ), has there been a pivotal judgement since ?

[dx100uk]

they cant redo the DN they terminated the agreement unlawful recission ..end off.

 

 

you are paying far too much 'worth' to a DCA

 

 

they are NOT bailiffs!!

 

 

no such legal powers

 

 

dx

[fletch70]

Hi

To be honest I can not read the first page of the agreement so can not comment on how compliant that is. If you can not read it then it fails as not being legible as mentioned

 

However just a few thoughts

When a company send a new credit card (replacement) they usually include the current terms and conditions, this is not a new agreement just a variation

The fact interest rates have changed could just mean that they have varied the agreement

 

Was there a signed statement of account from Lowell that came with the CCA request

 

You say that a signature is a cut n paste job, now that is wrong but a CCA request does not need a signature on it, if however you can prove that the signature was copied then should it come to court that will be great for you

 

As for the DN, IMHO once they had sold the agreement the fact that the DN was invalid kind of screws them. If however it had stayed with HBOS then it could have been fixed.

 

Hope that is of some help

[trout]

Included in their reply to my cca request was this covering letter and 12 mths worth of monthly statements

[fletch70]

Trout

Although I can't be certain as to me the agreement is illegible I suspect that they may well have complied with your CCA request so that route may not be possible.

 

However can I ask why you think this a cut n paste signature?

 

Is it possible to rescan just the first page so that maybe it can be read, or is it illegible to you?

 

If they have complied with the CCA request you have three options, set up a repayment plan or try to bluff them until it is statute barred (when did you last make a payment or acknowledge it) or finally be prepared let them issue a claim and defend on the bad DN (taking your word on that) and possibly the fact that they do not have a signed agreement

[trout]

I think that something is just not right ie the second image in post 41 is on the reverse side of doc 3 in post 41.

doc 3 mentions an agreement form on page 3, but there are no page numbers evident linking doc 3 to the its reverse ie image 2.

 

Halifax in their reply to Lowells, state ' your clients application '

[Desperate Daniella]

Hi trout,

 

Can I just confirm that this was always a Halifax account?

 

If that is correct, most of what they sent you has nothing to do with you as it is an agreement made with Bank of Scotland.

 

I've zoomed in on the first, separate, alleged agreement but still can't read it. Who are the parties to that one?

 

DD

[Desperate Daniella]

HBOS are known for mixing up bits of Halifax and BOS applications and pretending they are an agreement. (I'm sure they would say this was a genuine mistake.)

[fletch70]

Well spotted there batwoman

 

The original says between Halifax and xxxxx

 

The second set of T&C's says bank of scotland

 

As it is only a breach of a S78 request I would think that it doesn't in itself make it irredeemably UE and can be corrected at any time. Of course there is nothing saying you can not write to lowells and say that the S78 request isn't satisfied and as such S78(6) kicks in

 

Early on in the thread it is said that as the termination was prior to the remedy date on the DN all they could claim was the arrears, Can anyone point me to some case law or even a judgement that supports that.?

 

I would however argue that since the agreement has been sold and the DN was faulty it is now irredeemably UE (Easy for me to say, not my money)

[Desperate Daniella]

Yes, I would say that too, but I'd also say that Lowell are trying to obtain money by deliberately providing an agreement which they are fully aware could not be trout's.

 

Because I can't read it properly I am wondering why they sent the Bank of Scotland agreement if they could prove the Halifax one is an enforceable agreement on its own. That makes me suspicious. I also think it looks wrong. Cut and paste?

 

The bit about claiming only the arrears if there is a faulty DN has been on a number of threads but I can't think of any offhand as I haven't seen it recently.

[Desperate Daniella]

Sorry, trout, you've already said you think it's a cut and paste and I agree with you.

 

When exactly did you take the agreement out?

 

How much are the late payment charges?

[fletch70]

Lowell playing dirty, surely not Never heard of such a thing:x

 

It is really odd, a credit agreement with terms from Halifax and then what I assume are default terms from BOS

 

did find a post from PT somewhere saying that the argument had been lost in courts but it was sometime ago and as well all know consumer law changes more often than I get into trouble

 

Reading the very first post may explain it but not sure of the implications.

Card taken out pre 2007 , done online but may have needed a signature , in 2007 sent a new card that was a new account, could that have been a switch of logo from Halifax to BOS?

 

This one seems far from straightforward, not sure but maybe a SAR is called for to get everything from HBOS

[Desperate Daniella]

http://www.restons.co.uk/index.php?id=39

 

God knows how they got away with this because a Recorder has gone against the higher Authority of the Court of Appeal. I can only assume that the debtor in this case was not properly represented. As far as I can see the Brandon Judgment on Default Notices is the actual current authority.

[fletch70]

I am pretty certain that in Santander v Mayhew the fact the arrears were wrong was decided in her favour as well.

 

My understanding was that all the Brandon case said was that a bad DN is not automatically de minimus but it was not put to a test

[trout]

Thanks for looking in DD and also for your imput fletch70.

 

I'm not too sure why I first stated that I took the agreement out online, as i'm

certain that I only filled in an application form,but I could be wrong.

 

The 1st alleged agreement dates back to 11/05

 

The late payment charges were 25.00

 

Who do you think typed my name and adress on the Bank of Scotland agreement ( which included my middle name whereas agreement 1 did not ?

 

Although you cannot see it ,on both agreements in the final line of my address ie postcode, the last few characters slant upwards from left to right !!

 

Why is the front of alleged agreement 1 not linked to the back, indeed the codes on the bottom right

of either side are different ?

 

thanks in advance

[Desperate Daniella]

Because it's a pretty poor attempt at a cut and paste, and they have typed your name themselves.

 

I can't read it, but I don't think it looks like an online application form because that has tick boxes.

 

The late payment charges shown could have been correct at the time you took the agreement out because they all dropped in 2006.

[Desperate Daniella]

I am pretty certain that in Santander v Mayhew the fact the arrears were wrong was decided in her favour as well.

 

My understanding was that all the Brandon case said was that a bad DN is not automatically de minimus but it was not put to a test

 

fletch,

 

I think the fact that the Appeal Court said that the issue of the DN could not necessarily be considered to be de minimus must be the authority. They are right even if they didn't stress it too strongly. It is a statute, and as much as District Judges/Recorders will often be on the side of the creditor they shouldn't be allowed to disregard a statute. I think it's appalling that they get away with doing so.

[fletch70]

DD

I was not disputing at all. God knows i am no friend of the banks or the courts. What i was saying.,and maybe we are at cross purposes, was that the appeal court ruled that a defective DN could not be ignored as de minimus however each case was different. In the case you quoted the amount to remedy was less than the real figure and hence the debtor wasn't disadvantaged.

Having said that if the law says the creditor must do x y z and a judge says well it was almost x so i will say you did it then we are on a slippery slope. Next it will be, well you almost exceeded the speedlimit or you almost committed murder and then it will be you thought about it.

[fletch70]

I thought i had posted about s78 only being info but maybe i forgot to press enter. Am i going mad?

[Desperate Daniella]

DD

I was not disputing at all. God knows i am no friend of the banks or the courts. What i was saying.,and maybe we are at cross purposes, was that the appeal court ruled that a defective DN could not be ignored as de minimus however each case was different. In the case you quoted the amount to remedy was less than the real figure and hence the debtor wasn't disadvantaged.

Having said that if the law says the creditor must do x y z and a judge says well it was almost x so i will say you did it then we are on a slippery slope. Next it will be, well you almost exceeded the speedlimit or you almost committed murder and then it will be you thought about it.

 

That is the exact point I am making. The CCA isn't open to interpretation in the way that criminal law is, or family law, or in many other cases. It should be set in stone because it is quite clear what the law is, but this isn't stopping some judges not following it.

[trout]

So, two different full names ( for myself ),

 

on two different agreements,

 

from two different Banks,

 

BUT, sent by Lowell to constitute a valid CCA for one Bank ??

 

Prob cut and paste 1st doc , and also defo fraudulent second agreement ie wrong bank!!

 

I am still confused, I thought that would be trying to obtain monies by deception ?

 

What do you think I should say in my response to Lowell

[Desperate Daniella]

I think you should send a really sharp letter pointing out all of the above.

 

Then say they have an obligation under the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR 2008) to advise you if they hold, or have ever held, a properly executed consumer credit agreement pertaining to yourself, and they are equally obliged to advise you if they hold no such document.

 

Then quote the Waksman Judgment in Carey v HSBC, paragraph 234 (4) which states that where an agreement has been varied by the creditor a copy of the original agreement must be provided.

 

Then say they are trying to get money out of you by providing documents ........(however you want to put that) and you'll report them to FCA, etc., if they continue to harass you, etc.

[fletch70]

If you head it formal complaint they have to answer you, if it's just a CPUTR request I believe they can ignore it.

 

As DD says maybe put it this way " I believe that the documents you provided do not fulfil your obligations under S78(1) CCA1974 and as such the account is unenforceable as per S78(6) CCA1974 ( I enclose a copy for your reference and as such I find your reply completely disingenuous.

 

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 [F1£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.

(2)If the creditor possesses insufficient information to enable him to ascertain the amounts and dates mentioned in subsection (1)©, he shall be taken to comply with that paragraph if his statement under subsection (1) gives the basis on which, under the regulated agreement, they would fall to be ascertained.

(3)Subsection (1) does not apply to—

(a)an agreement under which no sum is, or will or may become, payable by the debtor, or

(b)a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

(4)Where running-account credit is provided under a regulated agreement, the creditor shall give the debtor statements in the prescribed form, and with the prescribed contents—

(a)showing according to the information to which it is practicable for him to refer, the state of the account at regular intervals of not more than twelve months, and

(b)where the agreement provides, in relation to specified periods, for the making of payments by the debtor, or the charging against him of interest or any other sum, showing according to the information to which it is practicable for him to refer the state of the account at the end of each of those periods during which there is any movement in the account.

[F2(4A)Regulations may require a statement under subsection (4) to contain also information in the prescribed terms about the consequences of the debtor—

(a)failing to make payments as required by the agreement; or

(b)only making payments of a prescribed description in prescribed circumstances.]

(5)A statement under subsection (4) shall be given within the prescribed period after the end of the period to which the statement relates.

(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;F3. . .

(b)F3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)This section does not apply to a non-commercial agreement, and subsections [F4(4) to (5)] do not apply to a small agreement.

 

Just bear in mind until April next year it is the OFT you would report them to and the Fos if they do not sort it out within 56 days

[trout]

Just a few queries before I draft up the letter that you have both advised.

 

In post 60 Fletch, you say that Lowells can remedy their mistake, do you mean change the details on the BOS agreement ?

 

Also, whilst digging around in my Halifax file, I found the original agreement sent to myself when they changed my account

number in 2007. The agreement sent to me is similar to an application form in format, ie like the half readable one I posted up.

 

It is unsigned by myself, but says it is an agreement between bank of Scotland plc, Edinburgh etc and blank of blank

 

On the perforated top third of the form there is a Halifax logo, and on the bottom of the form it states that halifax is a division of

the bank of Scotland.

 

The interest rates are the same as the alleged aagreement with Halifax but differ from the BOS agreement lowells sent.

 

Also, whilst the agreement with Halifax West Yorkshire ends after terms 4 , the unsigned agreemet I have found goes on to 17.6,

which is similar to the first BOS agreement I received which goes on to 19.6.

 

I'm a very confused trout

 

thoughts please