Nuthatch v Capital One

[nuthatch]

I am starting this thread as I have many debts and I have been advised it's the best way to keep track of what I am doing with each of them.

I have got individual files with copies of all correspondence.

This debt has been part of a DMP for multiple debts administered by the CCCS for over 2 yrs.

 

I had a DMP review with CCCS in Aug and my monthly DMP payment went down because of my recent bereavement and I am off sick. I have been off for nearly 5 months and GP has just signed me off for another 2 months.

 

I have other threads on the go for each of my debts and am plucking up courage to challenge them with the help of CAG.

 

I asked CCCS to stop paying one creditor

which they did but have refused to stop any more to other creditors who have provided no CCAs after a few months but keep adding charges,

Yesterday I spoke to my CCCS counsellor who just said there is nothing CCCS can do to stop creditors adding charges even though I told her it would therefore be impossible for me to ever pay off some of the debts as my monthly payment was less than the charges they were adding each month.

I have to say that Capital One have not added any charges at all since I entered the DMP so I did wonder whether to let sleeping dogs….but I have decided to CCA them.

[nuthatch]

CCA request posted off Recorded Delivery and receipt safely filed away.

[rory32]

How much are the charges on the account? Even though CCCS won't help you regarding the charges you can claim them back to reduce the balance. Obviously though you want to know if the agreement is enforceable first.

 

I asked CCCS to stop paying one creditor

which they did but have refused to stop any more to other creditors who have provided no CCAs after a few months but keep adding charges,

 

CCCS often do this and you will need to then consider whether or not you stick with your DMP with CCCS or come out of it.

[nuthatch]

Thanks rory32.

I am busily sending CCAs to all my creditors just to see what they come back with and then I will plan my next move when I know who has what.

 

I do belong to the Scotland forum but would you mind advising me if it is OK to generally use the templates on CAG for Scotland as well?

[rory32]

Generally yes the templates are fine for Scotland as well. If you're not sure about using a template just ask.

[nuthatch]

Letter received from Cap1 with a leaflet with current terms and conditions and a letter saying:

Thank you for your recent request. Please see overleaf for the current terms of your agreement with us.

For the rest of your terms and conditions, please see the leaflet enclosed.

If you have any further queries about your account, please call our customer Services centre.

On the reverse of the same sheet is just what it says!

 

There is also a letter enclosed:

 

Thank you for your recent letter requesting copy documents for your account.

You requested copies of the executed credit agreement and a statement of your account under section 78 of the CCA 1974.

Please find enclosed a copy of your current Ts&Cs of your agreement in compliance with section 78 of the CCA 1974.

Your account is in default and the amount currently due and payable is £XXXXX

You requested a copy of the default notice we issued on your account (no I didn't) Under section 78 we are not required to provide a copy of the default notice and statement of default. owever, we can confirm that a statement of default was issued on Oct 18 2008.

Should I just send off the Account in Dispute Letter?

[rory32]

I would send them the following via recorded delivery

 

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 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

[nuthatch]

Thank you so much rory32.

 

I will get this off tomorrow.

[nuthatch]

rory32 ..never got letter off yesterday as car poorly.

I have bben reading more threads about CCAs and found one saying that we shouldn't rely on a CCA request under sections 77-79 to get a signed copy.

Could you see if the letter I actually sent to them is OK? I used a letter from CAG but just want to be sure I am right.

 

Dear Sir/Madam

Capital One Bank Account Number

With reference to the above agreement, I would be grateful if you would send me a copy of this credit agreement.

I understand that under the Consumer Credit Act 1974 (Sections 77-79), I am entitled to receive a copy of my credit agreement on request. I enclose a payment of £1.00 which represents the fee payable under the Consumer Credit Act.

I understand a copy of my credit agreement should be supplied within 12 working days.

I understand that under the Consumer Credit Act creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act.

I look forward to hearing from you.

Yours faithfully

[rory32]

Could you see if the letter I actually sent to them is OK?

Yes it's fine.

[lunar jim]

Nuthatch, I guess you sent this a while ago, and now the 12 days is up. Have Cap1 wrote back to you, taken any action etc.?

[nuthatch]

No reply as yet

[nuthatch]

It's a long time since I did anything about this because of ongoing health problems and it is now nearly 6 months since my original CCA request.

 

Should I send the "Account in Dispute Letter" or is it just worth offering a Full and Final amount of about 20% of the original debt based on their non compliance with my request for the CCA?

[maroondevo52]

Hi, nuthatch.

 

I'd send the disput letter, see if they come back with anything.

 

Regards.

 

Scott.

[nuthatch]

Today, letter received from Ellie Renshaw.

 

As I've already explaned, in accordance with Sec78 of the CCA1974,And the Consumer Credit (Cancellation Notices and Copy Documents) Regs 1983, we've provided you with a copy of your original agreement, and if any terms have been varied, then the copy will include teh updated terms. In Addition, your personal details, the signature box, signature and date of signature were omitted from the copy as permitted under Reg 3 of the Consumer Credit (Cancellation Notices and Copy Documents) Reg 1983.

You clearly have a valid and enforceable credit and enforceable agreement as evidenced by the documents sent to you and any claim to the contrary will be strongly defended. Your account remains in default and the balance currently due is £xxxx

Then a load about me consenting to them processing my data and credit reference agencies

 

We will continue to pursue the outstanding debt and will defend any application you may wish to bring against us.

Financial regs require me to advise you that this is my final response etc

Could someone advise me what my response will be? I will have a scout around the site as well to see if anyone is in a similar situation.

[nuthatch]

bump

[the_shadow]

Hi nuthatch,

 

Almost all of the crapone threads are in the same position, applied for S78 and got rubbish back, sent template letter stating doesnt meet s78 request, they say it does and will defend any action YOU may bring against them.

 

This is an alternative to s78 request to get hold of the agreement.

 

Please read through carefully, its a long thread but you'll need to understand the process before starting.

 

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

 

S.