Hello All

[66606]

Hi, well what can I say? I guess like you I am having problems with debt and with DCAs. Every one I am dealing with paying off small amounts, except one from Capital One. That is in the Hands of RED, now normally I'd be quite happy to deal with them. But the first thing I knew about them was when they left a computer generated (?)message on my phone asking me to call RED.

 

I had no idea who RED were, they left no details about what the call was regarding and frankly I don't deal with computer voices, and have an minor phobia of using the phone ( I have to gear my self up for a week to even phone my mum).

 

The other thing is I have a form of epilepsy which effects my memory, if I don't sort something out straight away or do it regularly I simply cannot remember to do it. It also means that any form of stress gives me sever headaches that can lead onto a fit. Fortunately the lovely people at the council understand and help me with my outstanding council tax

 

But back on track, RED have wound me up by sending me a letter telling me they were planning or petitioning for my Bankruptcy. I'm not going to deal with them unless they do it how I want, so today I've sent of a CCA request as per the letter templates and I've marked it on my calender.

 

Hopefully it'll turn out all shiny and I'll be able to get on with my life.

[SOD'EM]

Hi 66606 an welcome to the CAG,

 

you are going the right way by not speaking to them on the phone and sending the CCA. Hope you sent it recorded delivery.

 

A moderator will move this thread to the DCA section when they get the chance.

 

You can visit it and read other peoples stories by using this link.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/

 

If any of this is at all helpful. Please click on the small scales to the left and leave a short comment.

 

Thank You

[66606]

Many thanks for the welcome SOD'EM

 

Oh yes, sent it recorded and even got the postal order printed out so it's all fully readable.

 

My wife has just asked me, "If they don't send the CCA are we going to claim the £1 back from them?"

 

I spent a good day reading the site, so I got plenty of ideas and hopefully this will sort it out once and for all.

[SOD'EM]

I sent a CCA request to a DCA once and they sent my £1 back with a letter saying "I would hear no more from them". I still get letters to this day but they haven't attempted any other proceedings. I think the letters are computer generated automatically (digital signatures and all that).

 

I sent them a letter threatining to sue them for harrassment (recorded delivery) so I know they have it. I am just collecting all theses letters now for evidence. I wish they would phone though.

[66606]

LOL, now that must have made you smile.

[sea-sidelady]

Thread moved to the debt forum. You will get more advice in here.

 

Good luck.

[cashins]

How old is the CAP 1 agreement?

 

David

[ScabHunter]

RED sound very dodgy to me.

 

The initial communication should be by letter in any civilized procedure. You should also have received a Notice Of Assignment from Crap One.

 

I presume you didn't, so make a note of that fact. It may come in useful later.

 

What often happens is that DCAs fake Notices Of Assignment on their own paper. They try to make it look like the paper of the original creditor, but are usually not very good at it.

 

SH

[66606]

Thread moved to the debt forum. You will get more advice in here.

 

Good luck.

 

Many thanks for moving it.

 

 

How old is the CAP 1 agreement?

 

David

 

Do you know I'm not sure, but I think it's over six years old. Could be a bit less, but as I said before I have memory problems. I do know I had a Barclays card in 04 and that was a year or two after the Cap 1 one

 

RED sound very dodgy to me.

 

The initial communication should be by letter in any civilized procedure. You should also have received a Notice Of Assignment from Crap One.

 

I presume you didn't, so make a note of that fact. It may come in useful later.

 

What often happens is that DCAs fake Notices Of Assignment on their own paper. They try to make it look like the paper of the original creditor, but are usually not very good at it.

 

SH

 

I believe RED are part of Lowes Finance? I'm not sure but when the lady at the post office looked up the address that was the company name she came back with, along with Npower !!

[ScabHunter]

Not Lowes but Lowells.

 

Otherwise known as Clownells or the Leeds Losers (ODC).

 

SH

[66606]

Not Lowes but Lowells.

 

Otherwise known as Clownells or the Leeds Losers (ODC).

 

SH

 

Arrrrr, so I take it they are not very good at what they do then?

[cashins]

Has anyone seen or heard of a 2002 Capital One CCA that was actually enforceable???

 

I for one, have not

 

David

[66606]

Hi all, well got a reply from RED this morning, along with a reply from Lowells.

The Lowells letter was advising me that they have requested the CCA from capital one and the RED letter had a copy of the CCA attached.

 

I can't post the actual CCA up at the moment as my scanner isn't working, but the jist of it is, that it is a single sheet, badly photo copied on one side, doesn't actually have any details as to what the agreement is for. It does have the word SOLD written on the bottom and most importantly has the date of the 30/11/00 on it so it's 8 years old.

[66606]

Looking through other threads I found a form that is exactly the same as the one I received this morning. Is it a True and enforceable CCA? or do I have to write another letter to RED?

 

[Copied form from zazen.warrior's thread]

 

 

[cashins]

As your scanner is u/s, you need to see if the prescribed terms are cotained in what they have sent.

 

Read this:

 

IS MY AGREEMENT ENFORCEABLE( Via section 127(3) CCA1974)

PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE

CONSUMER CREDIT ACT 1974 Taken from sced.6(1983/1553) regulations

(If you just want to find out, skip the bits in between the stars it’s just some extra information)

 

**What do we mean by unenforceable?

In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.

Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

 

How does unenforceable differ from enforceable with a court order only?

When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.

When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

 

The Pescribed Terms are these

 

A Amount of credit

A term stating the amount of credit

 

B Repayments

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-

(a) Number of repayments;

(b) Amount of repayments;

© Frequency and timing of repayments;

(d) Dates of repayments;

(e) 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.

 

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

--------------------------

 

Which of these applies to you depends on the type of agreement you have?

 

For a Running Account (credit card) agreement

 

BC and D Apply

 

For a Restricted Use Debtor Creditor Supplier

• Where the dealer is the supplier and the creditor is the one providing the finance.
  
• The money can only be used for the purpose it is given.
  
• There is no interest on the purchase (the cash price is the same as the total price)
  
• And there is no advance payment
  

A is applicable

 

For a fixed Sum Credit Agreement

A conventional credit agreement with none of the above restrictions

 

A and B apply

 

For a Hire Agreement

 

B is Applicable

 

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and4 this will be the subject of the next paper.

Please note that these Prescribed terms where not changed in any way by the 2004/1482 Ammendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreemens executed before that date.

 

If the terms are not there, (which they won't be), it's unenforceable

[66606]

Yep, your right cashins, none of those terms are on the sheet at all, in fact it says at the top 'Application form' so I guess now I have to send off another letter informing RED of that. There is a template on here for that isn't there?

 

(Many thanks for the info by the way)

[ScabHunter]

Time to send them the "Account In Dispute" letter -

 

Account In Dispute

 

Ref:

 

Dear Sir/Madam

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

You have failed to comply with my request, and as such the account entered default on **DATE**.(12+2 days after you sent the CCA request)

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

 

This limit has expired

 

As you are no doubt aware section 77(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

Therefore this account has become unenforceable at law.

 

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

 

I reserve the right to report your actions to any such regulatory authorities as I see fit. You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint. I therefore request a copy of your official complaints procedure which you are obliged to supply.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully,

 

xxxxxxxxxxxxx

 

That rubbish is crap even by Crap One standards.

 

SH

[cashins]

What you have is in fact the standard reply from Cap 1, ie they sent you a copy of the signature box, which means that they have not properly complied with you request.

 

Your letter of complaint will draw a response - oh yes we have - and we won't discuss it any further.

 

Cap 1 wind up arguing this odd position, because their CCA's before 2004 are mostly junk. (If anyone knows of one that isn't - please shout).

 

If they refuse to send it, they get told to f off, if they do send it, good chance of the same so they try and bluff it.

 

David

[66606]

Thanks for that letter Scabhunter, the actual 12+2 days is up on the 20th, but I'll be certain to get that letter off to RED first thing in the morning on Thursday, I might actually send it on Wednesday so it's at their offices on Thursday.