keefyboy - v - Capone

[Dark]

Moved to seperate thread

Edited March 1, 2009 by Dark

[silverfox1961]

Hi,

This really ought to be on a thread of its own.

 

I originally sent 2 letters requesting true copies of the agreement. The first request was 21 days ago; no reply to either. I did not explicitly quote the CCA 1974, nor pay £1, however.

 

I have now made a request under both the CCA 1974 s78 and CPR 31.16 in one letter, hopefully to ensure that both bases are covered and that they supply a copy of the signed executed agreement if it exists. I explicitly request a copy of the signed agreement under the CPR31.16 part of my letter.

 

I consider that kicking off CPR31.16 as reasonable at this point as my previous letters have gone completely unheeded and I therefore have grounds to suspect that the CC Agreement is being withheld because it is deficient in some manner.

 

Questions

 

Q. When requesting a copy of an agreement under CCA1974 s78, is it neccessary to cite CCA1974, or is merely requesting the copy sufficient without mentioning the Act? I think you should have cited CCA1974

 

CCA1974 s78 says that the CC company must respond within a prescribed period.

 

Q Where is this 'prescribed period' of xx days described or defined in the Consumer Credit Act 1974? The prescribed period is 12+2 WORKING days. Don't include weekends/bank holidays

 

Q When does the prescribed period days start:

a) on the day of posting of the request, or The +2 days is for the letter to get there

b) on the first working day on or after posting, or

c) on the day of receipt of the request? This is debateable as each day should be a full 24 hours. If they get the letter at 9 one day, I believe the clock starts at midnight of the same day

 

Q When does the period expire (assuming that the creditor does not respond with all the requested information):

a) On the expiry of xx days after the start, or 12 working days later

b) on the expiry of xx working days after the start?

 

Q Is the creditor deemed to have responded if:

a) they have posted their response within xx days from the start, or

b) the debtor has received their response within xx days from the start? This should be the one but the DCA will argue the toss

 

Q Does the Credit Card company have to physically sign the agreement as well the debtor to make it an 'executed agreement'? NO, They are allowed to omit certain details which is cpr 31.16 is being used a lot more

 

Q Must any, or all parties date the agreement for it to be 'executed'? Again, allowable details to be omitted

 

I note that a fee of £1 is payable, though some people seem to dispute that this is payable. I have now sent a cheque or £1.

 

Now, going to the circumstances of the original agreement:

Section 63(1)

 

Duty to supply copy of executed agreement.—

 

63 (1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, and on the occasion when he signs it the document becomes an executed agreement, a copy of the executed agreement, and of any other document referred to in it, must be there and then delivered to him.

 

(2) A copy of the executed agreement, and of any other document referred to in it, must be given to the debtor or hirer within the seven days following the making of the agreement unless—

 

(a) subsection (1) applies, or

 

(b) the unexecuted agreement was sent to the debtor or hirer for his signature and, on the occasion of his signing it, the document became an executed agreement.

Questions

 

Under normal circumstances, the Credit card company provides an unsigned pro-forma agreement for the debtor to sign and return.

 

In the absence of the Credit Card company's (creditor's) signature at that instant, and bearing in mind that I do not think the creditor will necessarily provide a Credit Card, I presume that at that point the agreement is still an unexecuted agreement. I say this because when I alone sign, the Agreement is not yet binding on the Credit Card company.

 

Q. Comments? Correct. (i think)Once it is signed it becomes an agreement

 

It would seem that Section 63(2) applies, and that section 63(2)b does not apply, as it was not executed at the time I, the debtor signed the agreement, in the absence of the creditors signature.

 

I signed and sent off the original agreement, It was not signed by the bank, and so I believe that it was not exeuted at this point. It seems that they should have sent a copy of the executed agreement back to me, (complete with their signature) . I did not receive such a signed copy within 7 days of taking out the card, or indeed at all.

 

Q. Is this interpretation correct? That I'm not sure about

 

Section 65(1)

Consequences of improper execution.—

 

65 (1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.

Q. If a Creditor is unable or unwilling to produce a copy of the signed agreement at all, even in court, is there any prospect that a court would assume or decide that there was an executed agreement, and that it would be therefore enforcable, due to, for example, the conduct of both parties lending and borrowing as if there were such an agreement? (I consider this highly improbable) Simple answer this, If they can't produce anexecuted agreement, either to you or in court, it is unenforceable

 

Other stuff

 

Q Where, if anywhere in CCA1974, is the form and details of a default notice to a Creditor defined? CAn't help with that one

 

Thanks for any help.

 

 

 

keep bumping for more answers

 

fox

[Dark]

Moved to seperate thread

Edited March 1, 2009 by Dark

[keefyboy]

Dark

I do think you have been a bit inconsiderate here, with all the info you have plastered all over MY thread, yes it is MY thread, you should have started a new thread of your own, the helpers here act very quickly with a new thread put up as I found out.

 

You are a newbie but if you look carefully you have interrupted all MY information by posting your long post in the middle of it ! which is very inconsiderate of you. I have problems exactly as you have and need quick answers, which I now have to page through all your post to be able to refer back to sections of my post. You may think your post is important to you and needs immediate action and advice, but all the threads are different, the circumstances are , maybe similar, but there are differences with what you need to sort out and what I need to sort out.

 

I have just come on here to add some more information about my cases and found you have plonked your stuff on here, which to me is totally irrelevant to this thread because of the different circumstances and where you are on your problems..

 

Try starting a new thread, then copy and paste onto your own thread and not just jump in where you feel YOU should put it without any consideration to others, you will make yourself very unpopular if you carry on doing things like this, I know I am not a seasoned member and posted thousands of replies, but when I see a thread that I can comment on and maybe make a suggestion, I do so, but I dont type out loads of stuff, which is not to do with the thread you are looking at and put my case on there.

 

Keith

[keefyboy]

Hi ||Fox

Today I received the exact same letter from Cap One as the previous on the other account, but as the other letter has been sent already I have covered that aspect.

 

Now we come to Lloyds/TSB, blimey I know they have a few problems but they have fallen big time, they don't even seem to be talking about the same thing as me, thanking me for my complaint etc etc... I am flabergasted by the reply letter and its contents I will scan it on so you can have a read and see what you make of it... or has my insanity come early...

[keefyboy]

sorry wrong scan uploaded

Edited February 28, 2009 by keefyboy
wrong scans uploaded

[keefyboy]

Lets try again and this time put the right scans on.......

 

 

:confused:

Edited March 18, 2009 by keefyboy

[keefyboy]

I think what I may do with them is, stop the payments and then when they start shouting and threatening legal action or whatever, then drop it to them that they have defaulted and what have they done about the requirements of the DDA as per letters of ...... dates

 

With regards to the DMC, we had no choice over it, it was put on us by the judge at the Hearing back in 2007 when Northern Rock got a charging order on the house and then forced us to sell up, we found out the following day why, cause they were going bust and trying to get as much money as possible back in by foreclosing on any loans that were in default (1 months payment we found out afterwards) and people who had defaulted by 2 months on their mortgages, and where we were in North Wales, quite a few families were hit hard losing homes and everything just like us, we lost everything. We didn't even know there was a Temp charging order on the house, they had not told us anything, first we knew of a problem was when we got a court date to make the temp order permanent.

I know we are paying them but I (at the mo) don't wanna rock the boat too much with the other creditors as we have a few more to hit yet and we know several are going to play nasty, real nasty. Especially one in West Yorkshire.... they were the sneaky so and so's that dealt for NR, real nasty and I felt at the time over stepping the mark several times...

Not looking forward to them.... But at least I have the advice of you kind Guys and Girls on here, thank you.

[Dark]

Dark

I do think you have been a bit inconsiderate here, with all the info you have plastered all over MY thread, yes it is MY thread, you should have started a new thread of your own, the helpers here act very quickly with a new thread put up as I found out.

Apologies, posts removed & seperate thread stated.

[keefyboy]

Afternoon Fox

Well what can I say, other than it is obvious that Capital One DO NOT have a signed agreement for either mine or the other half's accounts, and this is the reply they sent me today

 

 

 

 

 

What is your suggestions now please.

Edited March 6, 2009 by keefyboy
wrong pages pasted on message

[silverfox1961]

FOS, Trading Standards (both your local and theirs) OFT Uncle Tom Cobley and everyone else you can think of. Capital One will continue with the threat-o-grams but they will stop short of going to court as they know the agreement is a pile of poo.

Methinks a DCA will be calling soon If CAp1 sell it on you will be able to see off the DCA fairly quick with the "bemused" letter.

 

Hope you're ok by the way

 

fox

[keefyboy]

Yes I agree, I think its time to put them into worry mode, this is a good example of putting the heavyweight threats to cover up their errors.

They have picked on the wrong "the moaner" starts his letters in the morning !!

 

I'm not too bad, went to Leicester Royal on Friday, now totally blind in left eye and tunnel vision in the right, depressing, not totally unexpected, just got to get on with it... more letter writing to take my mind off it...

[keefyboy]

now a question, if I do find that it is unenforceable, can I ask for refund of what I have paid them ? (I know I'm pushing me luck), but seriously can I claim anything financial against them for all the worry and anxieity they have caused me ?? and of course something for the time and expertise (with your help ) in having to write all these letters to them ......

 

Just something else, did you see the bit about the change of address ? Well before I started the whole lot, I wrote to them and told them of change of address, and the DMC also informed them LAST YEAR, and we noticed that they hadn't done it so before I started the enquiries with them and wrote a letter to them informing them again that we had moved last year, and if they are not happy with this, then why have they been SENDING LETTERS to this address ??? I have a copy of it as well, both of them, the one from last year too..

 

Moaner = 2 Cap One = 0 hee hee

[keefyboy]

How many posts have I got to make to get rid of the "Basic Account Holder" ?

[hammyhound]

As far as I know Keefy you can't do both. I am not paying mine despite the fact that the charges now equate to the amount outstanding. If they turn up in court with an enforceable CCA (doubt it I have had the account since the early 80s) and Lloyds have told me they only go back to 1990. I will counterclaim them for the charges.

 

HH

[silverfox1961]

now a question, if I do find that it is unenforceable, can I ask for refund of what I have paid them ? (I know I'm pushing me luck)You will be pushing it, but seriously can I claim anything financial against them for all the worry and anxieity they have caused me ?? and of course something for the time and expertise (with your help ) in having to write all these letters to them ......only (I think) if you go to court

 

Just something else, did you see the bit about the change of address ? Well before I started the whole lot, I wrote to them and told them of change of address, and the DMC also informed them LAST YEAR, and we noticed that they hadn't done it so before I started the enquiries with them and wrote a letter to them informing them again that we had moved last year, and if they are not happy with this, then why have they been SENDING LETTERS to this address ??? I have a copy of it as well, both of them, the one from last year too.. The poor dears are a bit dim but you've told them enough times so sod em

 

Moaner = 2 Cap One = 0 hee hee

 

 

I'm truly sorry your not good. I know I wouldn't cope without my eyesight.

take care

 

fox

[silverfox1961]

How many posts have I got to make to get rid of the "Basic Account Holder" ?

 

I think it's 100. They don't really mean anything. My status just means I don't know how to shut up

[keefyboy]

Thanks HH I can't remember when my account was opened but its not that long ago... but that is worth bearing in mind....

 

and Fox,

but at least your "Don't know when to shut up" is helping people like me (a mere basic account customer) happy by finding our rights out...

 

Now if I send the next message one word every message that might get me there quicker.

 

Might get me kicked out is more like it.... (Only kidding) haw about 2 words a post ??

 

I bet all these financial institutions HATE computers...

[silverfox1961]

OH no, the financial institutions LURVE compooters. They then have something to blame instead of accepting it's their cock-up.

 

I think it's a minimum of 3 words per message

[keefyboy]

Eye couldn't do

[keefyboy]

that could eye ??

[keefyboy]

37 to go, no 36 now

[keefyboy]

Anyway back to reality, when I write to these organisations, should I enclose copies of all the correspondance from Cap 1 or just quote it in the letter ?

[silverfox1961]

At the risk of being cagbotted, you are a tit lol

 

When I wrote to the FOS, I included all the relevant paperwork(well, copies of) but not everything I wrote or received as it's usually too much.

 

With the FOS, you can download an application form and fill it in but I found the space allowed wasn't enough so I had to carry on onto a separate sheet.

I'm sure you could do most complaints online.

[keefyboy]

hmmm hadn't though of doing that way, I've been sharpening the quill up for the last hour...... and that was only the ones for the Arrows,

now wot am I gonna do now then.....?