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Lowells & Capital One debt - CCA request


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Hi could anyone tell me if this is correct please? I have requested my CCA using the templete letter, and this was Capital One's reply today. Thanks :(

 

 

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what b*gger all!

 

that about right.

 

i'd post in the cap1 forum if i was you too

 

dx

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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I'd be tempted to send them Scots letter below & see what their response is;

 

Re: my request under the Consumer Credit Act 1974

 

Thank you for your recent letter sent to me, the contents of which are noted. I appreciate your quick response to my original letter. However, the reply received by me does not fulfil your requirements under the Consumer Credit Act 1974.

 

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

 

My request remains outstanding. The items you sent in your reply, does not constitute a true copy of any credit agreement that may or may not have been signed by me on the opening of this account. It neither confirms that I am liable for any alleged debt to you, nor gives me any chance to evaluate whether any original agreement was ‘properly executed’.

 

I still require you to send me a true copy of the original credit agreement that you allege exists. As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

 

You had until XX/XX/2008 to provide me with the true copy I requested. You are now in default of my request. Any account I hold with you is now in legal dispute. Whilst the account remains in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agency.

 

To register information with a credit reference agency, you must have written consent from the customer to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

 

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office

 

To sum up, I will not be making any further payments to you until you provide me with the document I have requested. Whilst you remain in default of my request, you are not permitted to take any action against this account. This includes adding further charges and passing any information to the credit reference agencies.

 

Should you not have any signed credit agreement in relation to this alleged debt, please confirm this in writing to me.

 

 

I look forward to your reply.

 

Yours faithfully

Print name do not sign

 

**amend to suit your circumstances.**

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I had exactly the same from Cap 1, no matter what you write to them, they insist that they have complied and that is the CCA.

 

Write the above letter if you want, but I wouldnt bother getting into a big discussion with them.

If you find my post helpful please click on the scales at the top. Thank you

FAQ SECTION HERE

 

Halifax Bank Claim filed and settled

Halifax Credit Card settled

Argos Store Card settled

 

CCA requests sent to

Halifax Credit Card

LLoyds TSB Credit Card

Capital One

Moorcroft (Argos)

NDR

18/06/09

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Sending terms and conditions in no way satifies your request for a copy of your agreement and those terms are recent ones and they aren't the full terms of the account.

Absolutely send the letter that Cerebrus alert has recommended.

 

Have a think about sending the fools a SAR. In my opinion it is a tenner well spent.

By the way, I dislike Capital one with a passion:mad:

If you are asked to deal with any matter via private message, PLEASE report it.

Everything I say is opinion only. If you are unsure on any comment made, you should see a qualified solicitor

Please help CAG. Order this ebook. Now available on Amazon. Please click HERE

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I was sent almost the same but also a fake signed application form which i know i never signed. I kept writing to them requesting the true copy of the agreement and after writing 5 times, 2 years later they sold it to cabot, I requested from them and it was written off.

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  • 7 months later...

Hi, can anyone help me with this one? Capital One (after a long haul) finally privided me with this after my sending the CCA request letter. Does this Short Application form with my signature constitute a true exicuted credit agreement which will be enforcable in a court of law?

 

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I recently questiond them about this and they have replied (please see attached)

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Im slightly confused as to exactly what a fully exicuted credit agreement will look like. Any ideas?

ps Thay have passed it over to CapQues and also f.t.c total credit management.

Thanks

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It's their usual gibberish, what they have sent is an application form no more no less, it does not contain any of the prescribed terms and would be deemed unenforceable. Send them this;

 

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

This account is in Dispute .

 

On xx/xx/2009 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

 

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (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 situation 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.

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, 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 refer to 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.

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

I respectfully request a response to this letter in 14 days

 

 

I trust this out lines the situation

Print name do not sign

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Hi thanks for that. They did send two lots of seperate credit agreements one so say original and the other re constituted. This was sent along with the application form I had signed. However those were not signed. Does that have any bearing? Thanks again

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Hi again, Think I may have confused the issue now :( Originally they sent me the signed application form and a 1 page cut and paste effort of terms and conditions. When I compalined they eventually sent me the same signed application form but then included 2 lots of 5 page (double sided) so say terms and conditions of the credit agreement. (please see front pages of both sets below)

 

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Does this make a difference? They do not bear my signature.

 

Thanks

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Those T&Cs bear no relation to the document you signed. For an agreement to be enforceable the prescribed terms must be within it's four corners, clearly those terms are not present nor is there a link in that document to them.

 

The DN is defective as it is not date specific.

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Hi Cerberusalert,

The default notice you say is defective as it is not date specific? Im not sure what you mean :( They said I must pay the overdue amount within 28 days of the date of that letter? Is this not date specific?

 

Thanks again

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  • 2 months later...

It just means the DCA have got fed up with you and returned the account to Cap1. Nothing to worry about. :-)

If you are asked to deal with any matter via private message, PLEASE report it.

Everything I say is opinion only. If you are unsure on any comment made, you should see a qualified solicitor

Please help CAG. Order this ebook. Now available on Amazon. Please click HERE

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  • 3 years later...

Hello,

 

Well today its all kicked off again.

 

 

Back in October 2010 I received a letter from Capital One stating this account was no longer being managed by the debt collecting agency

acting on behalf of Capital One, and the account had been returned to Capital One.

 

Today I received a letter from Lowell introducing themselves as the debt purchaser.

 

 

They state that before selling this account to them Capital One checked their records

and found no reason why this should remain unpaid.

And now they want paying.

 

Please could you advise what I should do now?

 

Thank you

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Ok will do, I have written out a letter to them stating the account is in dispute, and

unless they can provide the original signed agreement I will continue to dispute this,

and report them to OFT for breech of The Office of Fair trading guidelines July 2003 (updated December 2006).

 

Or do you think I should wait for them to contact me again?

 

 

I don't want a County Court claim landing on the doorstep out f the blue :(

 

Thanks

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the OFT is long gone Nivagey, this is the new FCA Guidance-

 

show_instruments_icon.gifCONC 13.1 Application

 

CONC 13.1.1

01/04/2014

FCA

 

1This chapter1) applies to a firm with respect to consumer credit lending and a firm with respect to consumer hiring;

(2) does not apply to the obligation in or under section 78(4), (4A) or (5) of the CCA on a lender to give regular statements where running-account credit is provided under a regulated credit agreement.

 

 

Guidance

 

CONC 13.1.2

01/04/2014

FCA

 

(1) The FCA takes the view that sections 77, 78 and 79 of the CCA should be read in a way that allows the borrower or hirer to obtain the information needed in order to be properly informed without imposing unnecessary burden on firms.

(2) The statement referred to in the relevant section must be prepared according to the information to which it is 'practicable' for the firm to refer. In the FCA's view, this means practicable at the time of the request and includes information which can reasonably be obtained from third parties.

(3) Firms should take steps to ensure that information is preserved and kept available to be used to give information to a borrower or hirer.

 

 

The request and the duty to give

 

CONC 13.1.3

01/04/2014

FCA

 

(1) A request must be from or on behalf of the borrower under sections 77 and 78 or from or on behalf of a hirer under section 79. This would include a friend or relative, a solicitor, a claims management company or other third party. Under the Data Protection Act 1998 and the Data Protection Principles, the lender or owner is not allowed to reveal such information to a third party without the authority of the borrower or hirer. It should therefore satisfy itself that the person making the request has proper authority to obtain the information. If a copy of such authority is not enclosed with the request, the lender or owner is entitled to reply by asking to see the authority.

(2) Where there are two or more borrowers or hirers and the request comes from one only, it must be nevertheless complied with, and the response must be given to both (or all) borrowers or hirers.

(3) If the recipient considers that another person is the lender or owner, the recipient should either inform the applicant of who it considers is the correct recipient or pass the request on to that person.

(4) In accordance with the sections referred to in (1) the firm must 'give' a copy of the executed agreement and any other document referred to in it and the required statement. In the FCA's view, sending a copy of them by ordinary second class post will suffice. Guidance on what constitutes a copy is given below and found in the case of Carey v HSBC Bank plc [2009] EWHC 3417 (QB).

(5) The duty under the relevant section does not apply if no sum is, or will or may become, payable by the borrower or hirer under the agreement. This is irrespective of whether the agreement may have been terminated.

 

 

The copy agreement

 

CONC 13.1.4

01/07/2014

FCA

 

(1) The copy of the executed agreement should be a 'true copy' of the original. However, as confirmed in the case of Carey v HSBC Bank plc [2009] EWHC 3417 (QB), in this context the term 'true copy' does not necessarily mean a carbon, photocopy, microfiche copy or other exact copy of the signed agreement. There is no obligation to provide a copy which includes a copy of the signature.

(2) The firm can reconstitute a copy. It can do this by re-populating a template of the relevant agreement form with the details of the specific agreement taken from its records. If the firm does provide a reconstituted copy, it should explain that that is what it has done, to avoid misleading the customer that this is a contemporaneous copy.

(3) The terms and conditions should be those applicable at the time the agreement was executed. The name and address at the time of execution must be included.

(4) The reconstituted agreement should contain a heading prescribed by the CCA and any relevant cancellation notice.

(5) If the reason why no copy is given in response to a request under these sections is that there never was an executed agreement, the firm should acknowledge this in its response.

(6) If the agreement has been varied, the duty is to provide not only a copy of the agreement as originally executed but also eithera) a copy of the latest variation given in accordance with section 82(1) of the CCA relating to each discrete term of the agreement which has been varied; or,

(b) a clear statement of the terms of the agreement as varied.

 

(7) Further, section 180(1)(b) of the CCA and regulation 3(2) of the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 expressly allow certain matters to be omitted from the copy. There may be excluded from the copy of the executed agreement to be provided under these sections a) any information relating to the borrower, hirer or surety, or information included for the use of the lender or owner only, which is not required to be included by the CCA2 or by2 any regulations made under the CCA as to the form and content of the agreement;

(b) any signature box, signature or date of signature;

© in the case of pawn agreements, any description of the article taken in pawn.

 

 

 

The statement of account

 

CONC 13.1.5

01/04/2014

FCA

 

If the firm possesses insufficient information to enable it to ascertain the amount and date of any sum which is to become payable, it is sufficient to indicate the basis on which they would fall to be ascertained.

 

Failure to comply

 

CONC 13.1.6

01/04/2014

FCA

 

(1) Failure to comply with the provisions means that the agreement becomes unenforceable while the failure to comply persists, and the courts have no discretion to allow enforcement.

(2) In such cases, a firm should in no way, either by act or omission, mislead a customer as to the enforceability of the agreement.

(3) In particular, a firm should not in such cases either threaten court action or other enforcement of the debt or imply that the debt is enforceable when it is not.

(4) The firm should, in any communication or request for payment in such cases, make clear to the customer that although the debt remains outstanding it is unenforceable.

(5) In the judgment of McGuffick -v- The Royal Bank of Scotland plc [2009] EWHC 2386 (Comm) Flaux J held in a case under section 77 of the CCA that passing details of a debt to a credit reference agency and related activities do not constitute enforcement under the CCA. He also held that steps taken with a view to enforcement, including demanding payment from a claimant, issuing a default notice, threatening legal action and the actual bringing of proceedings, are not themselves 'enforcement' under the CCA. On the other hand he confirmed that the actions listed under sections 76(1) and 87(1) of the CCA did amount to enforcement notwithstanding that some of the actions 'less obviously' amounted to enforcement. These actions are demanding earlier payment, recovering possession of goods or land, treating any right conferred on the debtor by the agreement as terminated, restricted or deferred, enforcing any security and terminating the agreement.

(6) While Flaux J agreed with the decision of HHJ Simon Brown QC (sitting as a Deputy High Court Judge) in Tesco Personal Finance v Rankine [2009] C.C.L.R. 3 that commencing proceedings was not enforcement, but a step taken with a view to enforcement, both he and HHJ Simon Brown appear to have been drawing a distinction between commencing proceedings and entering judgment in those proceedings.

(7) This guidance deals only with the question of whether an agreement is unenforceable in relation to sections 77, 78 and 79 of the CCA. A lender's rights to enforce an agreement may be restricted for a variety of reasons, by the Act, by or under the CCA and by virtue of the general law.

(8) However, where a firm is aware that an agreement is unenforceable because of non-compliance with an information request under section 77, 78 or 79 of the CCA, a firm should make it clear when communicating to a customer about a debt that the debt is in fact unenforceable. Failure to do so, in that case, would in the FCA's view unfairly mislead the customer by omission. Any communication that implies expressly or otherwise that a debt is enforceable when it is known that it is not, would be misleading. One way to avoid this would be for the firm to explain to the customer the full meaning of 'unenforceable'

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Hi theoldrouge,

 

Thanks for this,

 

 

although now a little confusing :(

 

 

They originally "Cap One" sent a short application form back as my credit agreement,

 

 

then a bunch of terms & conditions, which looked a cut n paste job.

 

 

I'm told (on here) the Default notice is "defective" as its not Date Specific?

 

I wont send the letter I have prepared as its clearly out of date now.

 

 

Any advice would be much appreciated as I'm unclear what to do now :(

Thanks

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Can anyone advise on my default notice?

 

All the remedy stated was I must pay the amount due shown above.

 

This payment must reach your Capital One account within 28 days of the date of this letter.

 

How water tight is this?

Should they have given me an actual date dd/mm/yy to have remedy it by

and not 28 days from the date of the letter?

 

I have a copy of the DN previously uploaded.

 

Just a re-cap

 

Account date start 22 Dec 2004

 

The only CCA I received was a short application form and various T&C's

from Cap One after my SAR letter was sent to them.

 

Date of Default Notice 14/3/2010

 

Date of Termination 16/4/2010

 

Various debt collection agents came and went.

 

Then letter from Cap One 21/10/2010 stating account no longer being managed by debt collection agency's

and returned to Cap One.

 

Then most recent letter from Lowell Dated 01/08/2014 received yesterday 06/08/2014

stating they have now bought the debt and want me to pay them.

 

Unsure which way to go or what to send back to them?

 

Any help would be good

 

Thanks

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join the rest of us, Capital one dumping old accounts near 6 years limit to claim insurance etc, you received LOL106 hi it is us,

 

next will be LOL101 we are here to help contact us, = a beeging letter, as you have disputes with Capital One hence they have now sold off. sit back like everybody else and see what happens next

:mad2::-x:jaw::sad:
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