Robinson Way & Capital One

[ADIE1965]

Hi All,

Been having a look around but can't find the answer I want!

Rob Way are chasing me for a debt for ex Cap One account. But unsure where I should start?

Do I send CCA request first or CCA and DCA together?

Cheers

[drob]

You need to send a CCA request to Robinson Way

[ADIE1965]

Thanks for that drob

[drob]

I would also send a S.A.R to Capital One as i am sure your account will have unfair charges added to it, which you can start to claim back....

 

Remember to only deal with Capital One & Robinson Way by letter. Do not speak to these people on the phone.

[ODC]

Unless the CAPONE debt is a fairly recent one you can be fairly sure that the CCA they produce will be a mere application form and will NOT include the Prescribed Terms.

 

Of course knowing the numpties at RWC you will probably get a load of Bovine Excrement quotiing the Law Of Property Act 1925

[ADIE1965]

Hi All,

Been having a look around but can't find the answer I want!

Rob Way are chasing me for a debt for ex Cap One account. But unsure where I should start?

Do I send CCA request first or CCA and DCA together?

Cheers

 

I would also send a S.A.R to Capital One as i am sure your account will have unfair charges added to it, which you can start to claim back....

 

Remember to only deal with Capital One & Robinson Way by letter. Do not speak to these people on the phone.

 

Thanks drob, that's what I meant but got my abbreviations wrong(wrote DCA instead of S.A.R)

[ODC]

I would save a tenner by forgetting about sending an SAR to CAPONE at the minute to see what RWC come up with. An SAR is only worthwhile if they come up with an enforcable agreement and you think there are escessive charges on it

[ADIE1965]

Ok ODC,

Done my CCA request, will be in the post first thing tomorrow.

[ADIE1965]

Hi All, Got a reply from Rob Way to my CCA request(see below) exactly 12 day's from date of letter sent.

 

What should I do now?

 

Thanks, Adie

 

[ODC]

Makes a change from their usual Law of property excuse

[ADIE1965]

Hi ODC,

What now, just sit and wait??

[ODC]

Hi ODC,

What now, just sit and wait??

Yep. You have made the LEGAL request and its up to RWC to comply. If they make any further demands for money without complying then report them to TS

[blueeyedboy1980]

I received a so called copy of the original agreement from capital one via debitas. it seemed to me that it was 3 pieces of paper mashed into 1 and then photo copied. I have disputed its authenticity and so far i have received no correspondence from them trying to enforce. Be careful that what they send is correct.

[ODC]

CAPONE have got their fingers burnt recently when Lowells asked them to produce the original agreements NONE of them contained the prescribed terms.

[excel1]

ODC how do you force them to close the file when they have no prescribed terms, i know they shouldnt chase but i like things tidy and finidhed as it were.

[blueeyedboy1980]

I am in the position that MBNA had to write off my debt due to no agreement. unfortunately they dont have to amend your file. all they have to do legally is stop chasing you for the money. their records will show a nil balance but your credit file will not lose the default until the item becomes statute barred 6 years from date of default.

[ODC]

Send them this rather lengthy missive. The bit in RED points out what they need to produce but hey ho RWC are 'professionals' so should know that the poorly photocopied pile of poo they have produced does not comply

 

Dear Sirs,

 

 

Account no xxxxxxxxxxxxxx

ACCOUNT IN DISPUTE

 

 

Re: my request under the Consumer Credit Act 1974

 

 

Thank you for your letter dated **********, the contents of which are noted

 

You attention is drawn to the fact that this account is subject to a serious dispute. On xx/xx/2007 I requested Capquest supply me a copy of the credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78. To date Capquest have failed to comply with my request and have totally ignored my written reminders sent via recorded delivery of this fact. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you or Capquest, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974

 

 

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

 

 

 

Clearly as no agreement was supplied on request, this in no way complies with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in s78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (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 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.

 

 

To clarify s61(1) states

 

(1)A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

 

In addition the prescribed terms referred to in section 60 CCA1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—

 

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced.

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as Capquest become compliant with my request. As Capquest are still not in compliance with my request I insist that the following takes place with immediate effect

• All charges levied since ******** 2007 be removed from the account and further charges cease until such time as ******* comply fully with my original request or such time as a court makes an enforcement order
  
• All entries which refer to missed payments be removed from my credit file
  
• All collection activities by your company cease with immediate effect until ******** comply with my request from ********* 2007 or such time as a court makes an enforcement order
  

In addition, 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 have enclosed an excerpt from 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

 

What I Require.

 

I require that you send me a true copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well

 

No other correspondence will be accepted

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful

 

 

I trust this out lines the situation

 

Regards