Capquest CCA/Deed of Assignment etc request

[philby21]

Hi everyone,

 

I've spent a lot of time looking through various Capquest threads for anything similar to the situation I am dealing with for my wife.

 

Capquest apparently bought a debt for a credit card my wife used to have from Solutions Finance and are now pursuing it with their usual tactics.

 

We sent of a CCA request which also requested a statement of account, a copy of the executed deed of assignment and a fair processing notice.

 

Eventually (after the 12+2 days but before the criminal default time limit) the CCA copy appeared which was a photocopy of the original signed agreement.

 

What I am wondering now is what is the legal standing regarding the other items requested at the time? Are we in a position to question Capquests legal rights to pursue this debt if they fail to provide a deed of assignment?

 

We have recently had their standard format threat letter which waffles on about bailiffs etc and are treating this with the contempt it deserves (I had a CCJ years ago and am well aware of how hollow this threat is).

 

Any advice on where we go from here would be appreciated. I was originally going to offer a token payment (can't afford much more at the moment but that's a whole other story!) but their latest letter just makes me want to drag out the fight!

 

Thanks in advance,

 

Phil

[ODC]

Are you sure the copy CCA they sent contains all the proscribed terms. You need a statemnt of account to see whether the buggers have added any charges to it.

[philby21]

I'm planning on taking a close look at the CCA when I get chance. I'm just wondering whether I have any legal standing with regards to demanding that they prove they have a valid claim by producing a deed of assignment etc.

 

I am aware that they would have to produce this in court and that it would not favour them if they have failed to do so when requested earlier.

[Curlyben]

A CCA does NOT entitle you to a copy of the deed of assignment, only the agreement and statement of account.

That's it.

 

As ODC says the agreement MUST include certain information to be valid and enforceable.

These are the prescribed terms.

 

 

S61(1)(a) CCA provides that, for a regulated agreement to be properly executed, it must contain all the prescribed terms of the agreement and conform to regulations under s60(1) – see Q1.14.

 

Reg 6(1) provides that the terms specified in Sch 6 to the Agreements Regulations are ‘prescribed terms’ for the purposes of s61(1)(a) and s127(3) – see Q8.2.

 

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

Sch 6 was not amended by the 2004 Regulations.

 

 

Also check out Peter Bard's excellent thread on the subject: http://www.consumeractiongroup.co.uk/forum/general/103383-agreement-enforceability.html

[philby21]

Thanks Curlyben, that saves me having to find the prescribed terms again! I'll check what they have sent ASAP.

 

Still not received a statement of account, I'm also interested to know my legal standing with regards to questioning their authority to enforce this debt, any ideas??

 

Thanks,

 

Phil

[Curlyben]

IF the agreement they have sent is enforceable then they have everything they need to demand payment.

Can you scan and post a copy for us to have a look at ?

[philby21]

I'll have to get the good lady to tell me where she's put it and get back to you, I don't think the quality is too brilliant either. Watch this space.

[rory32]

I don't think the quality is too brilliant either.

Is the copy of the agreement legible?

[shane5408]

Hi philby21,

 

Firstly,

 

If all they have provided you with it a copy of the application form (ie no t&c's or a statement of account) then they have not fulfilled their obligations under a section 78 request, as such they remain in default until they do. While they are in default they cannot enforce the debt.

 

We need to see a copy of the alleged agreement if possible to ascertain whether it is enforcable, as Ben stated it must contain all prescribed terms, be readily legible and be signed by the debtor as a bare minimum to be considered legally enforcable.

 

you mentioned that Capquest have bought the debt, did you receive any notice of assignment be it from the original creditor or Capquest? If so can you post up the details.

 

kind regards,

shane

 

 

If my post has been useful please click the scales

[philby21]

Okay, I have taken a look at the copy of the agreement and it appears to be a photocopy of a fax. Although it is difficult to read it does appear to contain all the prescribed terms and is signed by my wife.

 

I have asked her whether she remembers receiving a notice of assignment but she does not recall having seen one from either company. If I remember correctly the first notice she got was when Capquest started sending letters and telephoning chasing payment (we soon put a stop to the telephone calls!!).

 

I can scan the agreement but how do I post it here?

[rory32]

I can scan the agreement but how do I post it here?

Have a read here towards the bottom http://www.consumeractiongroup.co.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

[shane5408]

Hi phill

 

here you go

 

 

[shane5408]

legibility is an issue but i can just about make out most of it. It seems to contain the prescribed terms for an in running credit agreement. It says at the top 2/2 is there a page 1 they sent you?

 

Also, it mentions in the cancellation box that they wil send you exact details of how you can cancel, if they never issued these in accordance with s64 of the Act the debt could be unenforcable by virtue of s127(4) of the Act

 

As a requirement of their obligations under a CCA request the creditor must send you the agreement and any other document referred to in it, be it the cancellationd details or further t&c's the agreement makes reference to. Until they provide these they are in default meaning they are unable to enforce.

 

kind regards

shane

 

Oh I also blotted out all your personal details on the form!

[Curlyben]

I agree there Shane, also it doesn't appear to be executed by the OC.

[philby21]

Firstly, thanks for the help - everyone!

 

Secondly, as the CCA appears to be a photocopy of a fax then I presumed that the missing '1/2' was actually a fax cover sheet. It looks to me like Capquest had to go begging to the original company for this!

 

As to any other documents, all they sent was a covering letter, nothing else.