Me v Capital One CC

[davey77]

Anything new happened? By the way, the reference number is showing on your default upload. If you wanted more anonymity you might want to remove it.

 

Personally i would start considering taking this down the LBA route considering it's not a massive amount of money and that should mean, hopefully, that Cap1 won't put up much of a fight.

[davey77]

Letter Before Action

[davey77]

Firstly, i would not jump right in unless you are fully prepared to issue the N1 court form and start proceedings. The LBA in itself won't scare the creditor and you need to be armed with all the info you can before starting to get serious.

 

You have a lot of different info in that LBA: It's a complaint and an LBA. Should be one or tuther.

 

The criminal offence can no longer be quoted as it no longer applies and was removed from the regulations.

 

You should be past the point of 'account in dispute letters' and mentioning harassment if you are ready for an LBA.

 

You are asking them to negotiate, and letters before action are merely a way of saying they must comply with specific points or you will begin legal proceedings. They will read right through that (adding extra requests) in an attempt to get them to back down and will see your intentions to go to Court as merely an attempt at discussion.

 

My LBA to Cap1 for instance:

 

Thank you for your letter dated 29 February 2008.

 

Having reviewed the copy documents you have sent in response to my request under s78 CCA, I have come to the conclusion that no valid or enforceable agreement exists between us. This is because the only document I signed is a pre-contractual application form which does not contain any prescribed terms, or any other terms or statutory notices as required by the CCA.

 

The documents you have supplied do not comply with s61(1) or s127(3) CCA and are therefore improperly executed and totally unenforceable:

 

s61 CCA - Signing of agreement:

(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.

s127(3) CCA:

(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).

 

Further, the only document I have signed is a pre-contractual application for credit, which may or may not have been accepted, depending on your lending criteria. This was therefore an agreement that falls under s59(1) CCA and is consequently void:

s59 - Agreement to enter future agreement void

(1) An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.

 

I therefore require a full refund of all payments made to you in the mistaken belief that a valid and enforceable agreement existed. I have calculated this figure to be £674.26p and I have enclosed a schedule setting out the details of my claim. I have also included statutory interest at the rate of 8% per annum from the date of each payment, and so require settlement in the total sum of £863.14p.

 

I also require that any adverse information provided by you in respect of this account to any credit reference agency be deleted from their records. If I do not receive an acceptable settlement proposal within 14 days of receipt of this letter, I shall issue court proceedings without further notice.

 

Since this letter is the first stage of intended court action, you are required under the general pre-action protocol of the CPR to send me any information I request. Please therefore supply me with a copy of any and all documents in your possession that you will be relying on as a defence to this claim. In particular, since the application form refers to information 'overleaf', I require that you send me a full copy of that original document, i.e. the front and the reverse', plus a true copy of the original terms and conditions. If you do not comply with this request, or send me written confirmation that no original copies of these documents exist, within the 14 days as specified above, I shall consider applying to the court for an order under Part 18 CPR.

 

 

Yours sincerely, me

 

 

First you need those figures of payments and interest/charges. You get that from a Subject Access Request if you haven't done so already. You also attempt to see what else they may have so you ask for the full original agreement in it's unaltered state (and any documents referred to.)

 

This thread is useful and tells you how to go about CPR requests for information to assess the merits of any potential Court action you may instigate.

http://www.consumeractiongroup.co.uk/forum/legal-issues/173201-why-you-shouldnt-use.html

Edited January 30, 2009 by davey77
adding link

[davey77]

They never agree that the account is in dispute (even when it is) so they tend to do as they please.

 

Seems to be the case that the only way to sort the Default out is to sort the agreement issues out thereby putting you in a position to argue a case for it's removal.

 

I would certainly write to the CRAs and tell them to put a dispute notice on the file to show that you disagree with it.

 

Others with more experience of handling the Default situation may have further input.

[davey77]

Hi all,

 

Update received 2 letters, i'll post them up later first from Capquet putting the account on hold for 28 days whilst they gather up the requested information and 2nd from Crapone telling me to bugger off they have provided me with all am getting and the will not be comunicating with me any further.

 

Tracey

 

Their left hand knows what their right hand is doing as per usual then

 

At least you have the account on hold for the mo..

[davey77]

Depends how you want to play it and what you willing to do but realistically the only thing they listen to these days is Court Action.

I suggest an LBA and taking a look at my Cap1 thread as your application form is pretty much the same as mine (missing prescribed Terms) and decide if that's the kind of route you want to take.

[davey77]

Trouble is when are they going to get around to making a claim. I tried to get many of my creditors to take me to Court.. told them i wouldn't pay a penny and the only way they were going to have any chance was to start Legal Proceedings. After which i was passed from DCA to DCA like a round of musical chairs

[davey77]

Have a look at the step by step method i used with Cap1.

It's shows the LBA and then N1 etc:

http://www.consumeractiongroup.co.uk/forum/legal-issues/171391-davey77-capital-one.html