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Question about default notices


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I checked my credit file and it showed capital one had a default notice against me, but i have never recieved any thing in the post about it. So i sent them a letter requesting a copy of the default, in there reply....

 

"Under section 78 we are not required to provide a copy of the default notice and statement of default. However we can confirm that a default notice was issued on 15/12/07 and a statement of default was issued on 04/01/08 for the sum of £....

 

For your records i have included the templates of the default notices, these are identical to the letters that were sent to you, without the specific details of your default, which is stated above, i also enclose a screen print of your account records confirming the dates they were sent" - capital one

 

Is this correct, i honestly have not recieved anything like this in the post, shouldnt they be sent recorded? What would my next move be? i have already sent a CCA request and they sent back just the application form, so i dont think they have one.

 

thanks:)

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Great, so you're regulated by the Consumer Credit Act 1974. Capital one? Credit Card, right? Prescribed terms are credit limit, interest rate and repayments. If these are missing from their "application", it isn't a regulated credit agreement and they can't enforce the debt against you - which includes issuing a Default Notice. (A Default is a form of enforcement)

 

The phrase "statement of default" comes from the 2006 Act, so they are even referring to the wrong Act!

 

Also, if they have only provided the current T&C's, without providing the original T&C's, they can't rely on them as they can't prove the originals allowed variation at a future point in time.

 

Be interesting to see that application form, as most I've seen aren't enforceable. The problem is that Crap One don't cave in easy and you may end up in Court to enforce your rights against them.

 

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"You requested copies of the executed credit agreement..."

 

"Although it isn't required under the Act, please find enclosed a copy of the document signed by yourself and Capital One"

 

These 2 phrases don't sit well with me - read it as;

 

"You've requested a copy of the agreement, but we are providing you with this and that is that"

 

In other words, they know this isn't an executed credit agreement and are trying it on, IMHO.

 

The application they've sent doesn't contain the prescribed terms, nor the required terms, so is unenforceable.

 

Without a true copy of the original Default Notice, how can they prove they sent one exactly?

 

Try sending them this;

 

Dear Sirs,

 

Account Number: XXX

 

Re; your recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I note that you have replied to the above by sending a copy of an application form and your companies current Terms and conditions I must inform you that this is not sufficient to comply with the request and that your company is still in default under the act.

 

To clarify, just sending the Terms and Conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a “true copy” of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, “the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form.” This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

 

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Yours faithfully

 

(credit where it's due, adapted from a post by Peter Bard)

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Right, they have replied to that letter above (very quick!)

 

"Under s78 CCA 1974, following receipt of your £1 fee, we are obliged to send you a copy of the executed agreement and of any other document referred to it together with a statement showing (a) the state of the account (b) the amount currently payable under the agreement and © the amount and due date of payments which will become due if you do not draw further on the account.

 

The consumer credit (cancellation notices and copies of documents) regulations 1983 explains what must be included in the copy agreement. Regulation 3 provides that the copy may omit certain information, including the signature box and your name and address. Regulation 7 provides that if the agreement has been varied the copy must include a statement if the terms of the agreement as varied.

 

The informaton i sent you was provided in accordance with these requirements. Therefore, i must advise you that we are not, as you suggested, in default on this matter."

 

Any ideas what i can send back? not really sure what to do now?

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Right, they have replied to that letter above (very quick!)

 

"Under s78 CCA 1974, following receipt of your £1 fee, we are obliged to send you a copy of the executed agreement and of any other document referred to it together with a statement showing (a) the state of the account (b) the amount currently payable under the agreement and © the amount and due date of payments which will become due if you do not draw further on the account.

 

The consumer credit (cancellation notices and copies of documents) regulations 1983 explains what must be included in the copy agreement. Regulation 3 provides that the copy may omit certain information, including the signature box and your name and address. Regulation 7 provides that if the agreement has been varied the copy must include a statement if the terms of the agreement as varied.

 

The informaton i sent you was provided in accordance with these requirements. Therefore, i must advise you that we are not, as you suggested, in default on this matter."

 

Any ideas what i can send back? not really sure what to do now?

 

In a way, they are right - but, they are avoiding the issue in question.

 

Send them this;

 

Dear Sirs,

 

I refer to your letter dated **/**/****.

 

To confirm your position, please reply with confirmation that your company does indeed hold an agreement that is all ways compliant with the Consumer Credit Act 1974 and the subsequent regulations made under it.

 

In your reply, I would like you to explain your reasoning for stating that you do hold such an agreement, (should that be the case) but continue to fail to supply a true copy of that agreement, which is your obligation under s.77/s.78.

 

Please be aware that I am considering taking legal action, that will result in you been forced to disclose the documentation you hold in relation to this agreement, under Civil Procedure Rules. This could include making an application to the Court for a declaration under s.142 CCA 1974 that the debt is unenforceable against me. The Court will not take likely to your continued refusal to comply with this request, or to fully disclose your true position in relation to this agreement.

 

My opinion differs from yours in that I consider this account still to be in default and I will be withholding payment as a result - I would like to invite you to take legal action against me, should you consider such action would be successful due to the documentation you hold, in which case I will look forward to receiving a Court Claim form from you, along with a true copy of the executed credit agreement.

 

Yours faithfully

 

Now, depending how confident you are, you might want to remove the bit in red - we need them to confirm whether they do, or do not, hold documentation conforming to the regulations. If they come back with twaddle again, I'd suggest that they don't and are hiding behind the legislation/regulations.

 

Of course, the punt is, if they do have such documentation, if could be enforceable against you, so I can't tell you what to do at this stage.

 

Either way, depending on what reply you get to this, there may be further action we need to consider - not excluding contacting the Police, Consumer Direct, the Financial Ombudsman, the Information Commissioners Office and your MP, amongst others.

 

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Would it be wise to include the following at the end of the letter?

 

The commencement of legal proceedings under such circumstances could be counter to the ‘Overriding Objectives’ of the new Civil Procedure Rules. You will be aware that the Overriding Objectives underpin everything the court does. Moreover, paragraph 4 of the Protocols Practice Direction states that in cases not covered by an approved pre−action protocol, the court will expect the parties “to act reasonably In trying to avoid the necessity for the start of court proceedings”.

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Would it be wise to include the following at the end of the letter?

 

The commencement of legal proceedings under such circumstances could be counter to the ‘Overriding Objectives’ of the new Civil Procedure Rules. You will be aware that the Overriding Objectives underpin everything the court does. Moreover, paragraph 4 of the Protocols Practice Direction states that in cases not covered by an approved pre−action protocol, the court will expect the parties “to act reasonably In trying to avoid the necessity for the start of court proceedings”.

 

Probably, but don't expect them to stick to it.

 

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