Is this just an application or a full CCA?

[agenoria]

I have just received this and would just like someone with a little more experience of these things, to confirm my suspicions that this is in fact an application for credit and not a CCA that was requested by the usual method.

 

The history (briefly) so far is:

 

CCA request sent and dated 2nd October 2007

Buchanan Clark & Wells replied, letter dated 3rd October 2007 stating that they were not the creditor etc (Aktiv Kapital).

Applying the 12 working days + 2, taken from the date of their letter, takes us to 24th October 2007.

Starting from the 25th of October, 30 calendar days takes us to 24th November 2007.

On the 8th November we received what was called by BCW a 'credit agreement'. with a letter dated 7th November, stating the usual failure to pay, legal action and payment in full must reach our offices by 13/11/07 type of threats.

 

Basically, as the so called agreement states that it is an application in two separate parts and under the section entitled 'Initial Credit' it says "If you are given the right to take credit when you sign the agreement the right to cancel referred to in the box below will not apply to the agreement". Does this mean that this is not the actual consumer credit agreement as requested?

 

The application was signed on the 14th January 1997, but it is not sure when the account was dealt with, whether it was paid off (as believed by the debtor) or otherwise, sometime around the 2000 - 2002 time (so we don't know whether it could actually be statute barred or not). In any event, the application shows a credit value of £300 and any outstanding

balance, if any, would be far less than this and not the £803.62 that both Buchanan Wells & Clark and Aktiv Kapital are pursuing.

 

So, for that extra peace of mind, is this just an application and do we just sit and wait for the 30 days to run out? Any help or assurance will be greatly appreciated.

 

Agenoria

[shane5408]

Hi Agenoria,

 

It is definitely a precontracual application form however it does contain the required prescribed terms, them being rate of interest, repayments and credit limit (under Financial details of Account)

 

S 59 (1) of the Act states that any agreement that purports to bind a debtor into entering a future agreement is void, this may well come under that criteria.

 

Can you let me know a little more about how the account was applied for, did you sign the application on company premises for eg?

 

OR Were you sent the application, filled in details and then sent it back to the creditor to accept it?

 

kind regards,

shane

[rory32]

Did they send a statement of account with this "agreement"? They are supposed to do this as part of your CCA request. They can't just say you owe use 300 quid, they have to substantiate any balance they say is outstanding on the account.

[shane5408]

They are still in default if they haven't supplied the statement of account as Rory mentioned above. they also have to send you a copy of the t&c's that the application says are 'overleaf' as well as the cancellation details the application form says would of been sent to you in the post.

 

It sounds like the DCA hasn't bought the debt but is just collecting on behalf of the original creditor (OC), if so i would also suggest sending a S.A.R - (Subject Access Request) to the OC to establish if you had any penalty charges debited from the account, if so you can reclaim them. It should also give you a better picture of how the account has been handled.

 

kind regards,

shane

[agenoria]

Hi Guys,

 

Thank you for your input.

 

The account isn't actually mine. We think that this may be an account that was paid off years ago. If this is in some way connected to that, it would have been a store card with Evans, the clothes store (as shown at the top of the application) and as such, it would have been signed in the shop, identified as branch/store 120, wherever that was.

 

There was no statement of account sent with the single photocopied sheet of the application shown, or anything relating to the account such as terms and conditions etc. The only thing attached was a letter from Buchanan Clark & Wells, basically demanding payment. We have no idea what the debt relates to, how much is owing (other than a theoretical maximum of £300 that we believe is not owed in any case) and there has been no information forthcoming and unlikely to be, within the 12+2+30 days time limit.

 

Before doing a little homework on here and formally requesting a copy of the CCA, from Buchanan Clark & Wells, I did write to them requesting a full breakdown of the alleged debt to which they ignored my letter(s) completely. To date, the only information regarding the debt, apart from the usual threatening letters, is the aforementioned photocopy. They also returned my cheque for £1:00.

 

It does seem that Buchanan Clark & Wells are acting on behalf of Aktiv Kapital Investment Ltd as they have admitted that they (BCW) are not the creditors. But, there has been nothing to suggest that Aktiv Kapital has bought the debt from Evans. As such, who should I send a S.A.R. to? Aktiv Kapital or Evans? Also, if I were to contact Evans, even though I am not the debtor, could that affect things regarding the possibility that the debt may already be statute barred?

 

Best regards,

 

Agenoria

[rory32]

Possibly just save your tenner and make a formal complaint as they have failed on two occassions now to substantiate that there is any amount owing in any way. If they don't resolve your complaint you can then go to the FOS who will charge them a minimum of four hundred pounds for looking into it.

[agenoria]

Thanks for that idea Rory.

 

Would that be a formal complaint directly to Buchanan Clark & Wells?, and if so, would it be better to wait until after the 30 days, but before sending a response to their letter demanding payment that came with the copy of the CCA (application)?

 

Best regards,

 

Agenoria

[tomterm8]

The "agreement" looks broadly enforceable, however, without a statement of account you have grounds for a complaint as Rory says.

 

If they continue trying to collect the debt, then a quick S.A.R. of the original creditor might be useful, since it might enable you to see what charges have been added, which you could reclaim.

 

But for now, a formal complaint would probably do the trick.

[shane5408]

A SAR will also confirm whether or not they sent you the cancellation details, if they didn't you can argue the agreement is also unenforcable by virtue of s127(4) of the Act.

 

kind regards,

shane

[agenoria]

Thanks guys,

We've had no further contact, so far and the clock is ticking. I will wait until after the 30 days, before making a formal complaint to Buchanan Clark & Wells. Would it be better to just send it to their complaints department, or to make a formal request of their complaints procedure first?

Regarding a subject access request. As BCW are not the original creditors, would that mean sending a S.A.R. to Aktiv Kapital, or Evans as shown on the copy of the application? If Aktiv Kapital bought the debt, are they now regarded as the original creditors, or just a creditor? Also, would it be better to leave that particular sleeping dog alone!

Best regards,

Agenoria