HBOS CCA Request - Reconstituted Copy s78 Compliant??

[DJM10118]

Hi All,

 

Received my first response to my CCA request from HBOS card services.

 

The card was taken out in July 1999 and was defaulted in 04/2009.

 

I guess this will be removed from my cra file on 14/04/2015...fingers x.

 

Paying them through Blair Oliver & Scott at £60 per month

 

I have received a reconstituted copy of the t+c, apr etc for the card above.

 

The copy simply states my new name and address and the current terms.

 

Apparently this conforms to s78 of the CCA 1974 so as far as they are concerned this is enforceable

so this is the end of the story!

 

I was at a different address when taking out the card so surely this isn't a true copy of the original, recon or not??

 

They did go on to say that they were looking for the signed agreement under s60/61 but apparently this isn't required by law.

 

 

DJ

[theoldrouge]

no it does indeed not comply with s78(1), it must contain your name and address at time of inception, and until they do send you a compliant reply s78(6) applies, and they would currently be unable to obtain a ccj, though they can of course continue to request payment and mark your ac as a default.

[DJM10118]

Thanks old rouge.

 

 

Its strange as my current house and the address on the recon copy wasn't even built in 1999! Could you advise if I should send them another letter and what it should refer to?

 

 

Thanks

[SWLABR9]

I think we need a list of what's needed to be compliant with S78 (1) which can be referred to as it comes up repeatedly, or is there a sticky already?

[theoldrouge]

All depends how you want to play it really. Stop paying, drop payment to £1 per month,use the info to negotiate a very low f&f settlement ,to name but a few. If you wish, send a letter saying-You have reviewed the documentation sent in reply to your s78 request,which does not meet the requirements of s78(1)CCA1974 (pers I would not tell them why,let them work that out)and the account remains in dispute- as to whats needed read the oft guidance on s77/78/79 and carey v hsbc( all 234 paragraphs:-))

[BRIGADIER2JCS]

I would suggest a formal complaint to the Compliance Director at HSBC

To produce a faulty reconstituted agreement (as bad as this one) needs full investigation.

 

 

A copy to the ICO alleging that HSBC are manipulating data, and to the OFT/FCA as this recon has been produced as part of a debt collection process.

[DJM10118]

Sorry may have given incorrect information in my previous posts. Having had a another look my name and original address do appear on the recon cca document. I have read the carey vs HSBC and whilst I grasped some of the information I still don't fully understand it.

 

 

I think I need to read section 78 in full to see if I can understand what's required. After I read the carey vs HSBC it just made it more confusing!

 

 

DJ

[fletch70]

In my opinion you write to tell them that what they sent does not comply with your S78(1) request and therefore as S78(6) says any account would be unenforeceble

Do not tell them what it is just that it doesn't comply.

I would then stop paying

If you pay £1 per month the debt will be alive for ever , if you stop it will be gone in 6 years.

Obviously if they do at some point come up with the goods you will need to start repayments

 

AS for a formal complaint , I have heard of many an occasion where a recon has had the wrong name and or address on it, I have seen them myself . I think it would be a waste of time making a complaint and on top of that do we really want the banks to know what they did wrong. After all they con you all the time

 

 

Just read the above and suggest until we can see what was sent you continue to pay

[fletch70]

A S78 Request must contain

A copy of the original agreement or if not available a copy of what the agreement would have looked like

A copy of terms and conditions at the time the debt was taken out

A copy of terms and conditions at default/current

A signed statement of account i.e amount owed and state of the account, not a list of all transaction

Any other documents referred to in the agreement . (For example if they refer to subsection 4 clause 5 they must include the document that contains subsection 4 clause 5)

 

All that would satisfy a S78 request however if the agreement is not properly executed then it becomes unenforceable . (For agreements taken out prior to April 2007)

[SWLABR9]

Ah now (and thanks Fletch), are we talking about the agreement itself or, as CC companies in general seem to be fond of sending, the front page of the application form as I believe there's a distinction between the two which the CC companies aren't keen for people to grasp?

[BRIGADIER2JCS]

As a reconstituted agreement having the Ts & Cs at inception and closure + the debtors and creditors name and address and the creditors + any documents mentioned in the Ts & Cs plus a signed current signed statement of the account.

This may be supported by perhaps a page from an app form completed by the debtor to prove that an account was opened (often we see such documents with " approved'' stamps and other such data on them.

 

 

It must be remembered that very many credit cards are issued after an individual answers an advertising item containing an application form that contains All the relevant data to form a CCA'74 regulated agreement and no further agreement form is provided or indeed needed.

 

 

In this situation Ts & Cs are more often than not provided in the form of a booklet delivered along with the card applied for.

 

 

If your recon does not comply with all the requirements then a formal complaint is the way forward as if the practice of producing non compliant documents will continue and those without knowledge of such matters Will be deceived and may well lose money.

[Conniff]

no it does indeed not comply with s78(1), it must contain your name and address at time of inception, and until they do send you a compliant reply s78(6) applies, and they would currently be unable to obtain a ccj, though they can of course continue to request payment and mark your ac as a default.

 

 

It must be an exact duplicate of the original but may omit the signature. Have a good dig around and see if you can find the original then you can compare it with the t&c sent you.

[SWLABR9]

Many thanks. I'm still confused by the term 'properly executed agreement'. This means that the agreement is legally configured, am I right?

[fletch70]

Yes , it has to contain the prescribed terms. These can be found in the consumer credit (agreements) regulations 1983. I am sorry but I can not post them here for some reason.

Basically the prescribed terms are

Name and adress of borrower

Name and address of lender

Credit Limit or the manner in which it is decided

Repayments i.e how they are made

The rights to cancel box

Signature box

 

I think that is it more or less

 

Oh it must state that it is a regulated agreement under CCA 1974

 

The problem with application forms is that very often, in fact more often than not on older agreements the creditor is unable to demonstrate that all the prescribed terms were within the signed document or indeed that the T&C's were sent

 

Some people are more supportive of using unenforceability than others .

There is no one size fits all. Even a compliant S78 request does not mean the agreement is enforceable.

 

 

If you google images for say HBOS CCA agreement 1999 or whatever you may find others that have been posted to compare

 

Some of the give aways can be

Wrong name or address from inception

Wrong default charges from inception (In 2006 for credit cards they changed to £12 generally)

Wrong default charges from default

Missing terms. I.e they refer to section 21 but do not send s21

 

Really hope that helps

[fletch70]

One final point

There are some quite heavy personality conflicts on the forum so please take the time to make up your own mind .

For the record I am very pro using unenforceability if it is right for you .

There are benefits and risks , the fewer assets you have the lower the potential risks IMHO

[fletch70]

If your recon does not comply with all the requirements then a formal complaint is the way forward as if the practice of producing non compliant documents will continue and those without knowledge of such matters Will be deceived and may well lose money.

 

I really do have to disagree here. Why would you want to raise your profile if an account is UE.

As for it stopping the unwary of being conned, if they do not know what is required it will make no difference if it is compliant or not.

[SWLABR9]

"The problem with application forms is that very often, in fact more often than not on older agreements the creditor is unable to demonstrate that all the prescribed terms were within the signed document or indeed that the T&C's were sent" This is exactly the situation with me, mine's from 2000 and they're saying all or part of the terms 'would have beeen' on the back of the application form. And it's not like their saying 'would have been' is any kind of proof though they seem to think it is. They keep quoting Waksman at me too - my understanding is Waksman doesn't apply to an agreement that old, is that right?

[fletch70]

Waksman does apply but remember that is only s78 stuff. They would need to show on balance they are right so it would be down to you to say they wouldn't be. Without the actual document i think they would struggle and they will know it.

[DJM10118]

Hi All,

 

 

Basically I have been sent a covering letter saying they will try find my signed agreement under s60/61 and will forward this on in due course. They also state that they have met the obligation under s78 by sending a recon copy of the original terms (has my correct name and address at the time of inception) They have also sent what looks like their current terms with my new address on it?

 

 

The cover letter states that my account is in default and the outstanding balance

 

 

I wondered if s127 (3) applied as the card was taken out pre April 2007?

[fletch70]

S127(3) applies but only if the agreement was not properly executed.

You either have to show that there are errors in the recon or errors in the original .

 

Remember even if S127(3) does apply they debt still exists and they can still ask you for payment. They can even issue a court claim however what they can't do is get enforcement .

[DJM10118]

So as it stands along as they produce what they consider is a true copy of the original on printed a4 paper then its enforceable. I don't have any of the original paperwork to see if there were any errors so I guess we have to take the banks word that it was correct at the time of inception? I'm not sure if I'm missing something here but it seems in favour of the oc as they don't have to prove I signed anything back in 1999 that conforms to the alleged "true copy" they reconstituted.

 

 

doesn't s127 (3) require a signed copy of the agreement for pre April 2007 to be enforceable?

[fletch70]

I am not quite sure the best way to explain this

 

S77-79 is all about information. This is a request from the debtor for information on the state of the account. HHJ Waksman decided that a reconstituted agreement made up from other sources would suffice provided that it was what would have been signed.

If a lender does not supply all the documents as required then the debt is unenforceable . However be warned that this can be fixed. In Arrow Global v Frost they actually presented a fully compliant S78 request during the course of the trial.

In Santander V Mayhew where Santander lost it was actually found that the S78 request was complied with . Ms Mayhew was however seen by the judge as being a credible witness so it was decided that on balance the lenders had not sent a new agreement to sign etc etc. Ms Mayhew has said that her feeling was that the judge initially had her down as a debt dodger but the arguments and evidence proved otherwise.

 

So yes what the bank has supplied may well comply with S78

 

However S61 CCA lays down what is needed for a properly executed agreement and then S65 says

(1)An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.

 

S127(3) then prohibits such enforcement

 

What you would need to show (on balance and not neyond reasonable doubt) is that the agreement was not properly executed.

I personally believe that the lender would have an almost impossible case against a well argued defence unless they can produce the actual signed agreement. They would need to show that you signed a properly executed agreement that the terms and conditions were either with the agreement or sent to you with the card , that the default notice was delivered and gave enough notice .

 

I would stop payments until such a time as they can produce the original document.

 

Keep the letters from the bank safe and should they sell it on, or if a DCA contacts you just send a short letter saying that the alleged account is UE and include a copy of the banks letter saying they can not find the original

[theoldrouge]

You need to read what they have sent word by word. Phone nos not in use at that time, charges not used then, etc etc. This is just for s78 purposes though. The route to s127(3),is via s65 improper execution ,eg missing prescribed terms ag not in prescribed form etc s60/61. Don't even think of trying to emulate Emma Carey though, basically you would stop paying, let them take you to court, and then say you could not have signed an agreement such as this because......?(if they cannot produce the original)

[fletch70]

I would echo the oldrougue. Sometimes the banks will suggest you go to court to get the enforceability ruled on.

 

Never do that. Do what you can to stay out of court and if you do end up there you should be the defendant

[DJM10118]

Hi,

 

 

Thanks for spending the time to explain this to me. I may need some time to get my head around it! So to recap:

 

 

1. HBOS have complied with S78 by sending the recon agreement. On face value the details are correct but I am unable to check for errors as the original isn't present?

 

 

2. S61 states what is required to be properly executed agreement i.e. signed original agreement (not supplied by HBOS)

 

 

3. S65 then goes onto say that without the signed agreement as per S61 then no court action can be taken without a court order.

 

 

 

 

So the bare bones of it is until they come up with the signed agreement under S61 I can withhold payments on these grounds? The account is already defaulted and with a DCA. The default is due to be removed 04/2015 so they cannot add another default on if I withhold payment? Do I need to send them letter or just wait until they come up with the signed agreement under S61?