Capital One CCA Enforceable?

[Braveheart12]

Can anyone advise if this CCA is enforceable?

 

 

[cerberusalert]

All they have sent are the T&Cs I'd be tempted to send them Scots letter below & see what their response is;

 

Re: my request under the Consumer Credit Act 1974

 

Thank you for your recent letter sent to me, the contents of which are noted. I appreciate your quick response to my original letter. However, the reply received by me does not fulfil your requirements under the Consumer Credit Act 1974.

 

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

 

My request remains outstanding. The items you sent in your reply, does not constitute a true copy of any credit agreement that may or may not have been signed by me on the opening of this account. It neither confirms that I am liable for any alleged debt to you, nor gives me any chance to evaluate whether any original agreement was ‘properly executed’.

 

I still require you to send me a true copy of the original credit agreement that you allege exists. As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

 

You had until XX/XX/2008 to provide me with the true copy I requested. You are now in default of my request. Any account I hold with you is now in legal dispute. Whilst the account remains in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agency.

 

To register information with a credit reference agency, you must have written consent from the customer to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

 

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office

 

To sum up, I will not be making any further payments to you until you provide me with the document I have requested. Whilst you remain in default of my request, you are not permitted to take any action against this account. This includes adding further charges and passing any information to the credit reference agencies.

 

Should you not have any signed credit agreement in relation to this alleged debt, please confirm this in writing to me.

 

 

I look forward to your reply.

 

Yours faithfully

Print name do not sign

 

**amend to suit your circumstances.**

[cuz]

hi cerberusalert, ive also just received exactly the same letter, but i also got another letter with it stating,

 

"your personal details, the signature box, signature and date of signature have been omitted from the copy provided as permitted under Regulation 3 of the Consumer Credit (Cancellation Notices and Copy Documents) Regulations 1983"

 

shall i also send them the same letter?

 

thanks

[cerberusalert]

Yes

[Braveheart12]

I think I may have jumped the gun a little and sent the following letter,

 

Account In Dispute

 

Re Account No/Reference No:- *****************

Dear Sir/Madam

 

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 20/02/2009 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 06/03/2009.

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,

[Braveheart12]

In respose I recieved the following;

 

 

 

 

can anyone advise me of a suitable responce to this?

 

Thankyou

[cerberusalert]

Send them this letter recorded delivery (print your name,don't sign it)............

 

 

Dear Sirs

 

Account number

 

I write with regards to the above account with your organisation.

 

I respectfully request that you provide me by return a copy of the credit agreement which bears my signature. I require this as i have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed.

 

Obviously if the agreement is improperly executed I would be entitled to ask the court to consider the agreement and make a declaration of the rights of parties to the agreement.

 

I must stress this request is NOT made pursuant to section 78 Consumer Credit Act 1974 but is made pursuant to the Civil Procedure Rules ( Pre action protocols and Part 31.16) and therefore unsigned copy will not suffice, only a copy of the original contract in its unaltered form will suffice in these circumstances

 

Please confirm if you still hold a copy of my signed agreement and that you will provide me with this document.

 

I do not view this as an unreasonable request given that by supplying the document which I have asked for it will allow me to assess if my case has merit and will help to resolve matters possibly without the need to involve the court and will undoubtedly save costs on both sides

 

I look forward to your reply and wouyld ask for a response by 4pm on XXXX Date ( Give 21 days to respond)

 

Yours,

[Braveheart12]

Thanks cerberusalert, I will send ASAP.

 

Will my previous letter jeopardise my case? hope not!

[cerberusalert]

No, all you are doing is asking for the same information but using a different legal route. If this fails you may have to do a SAR tho'.

[Braveheart12]

OK. thanks again. I'll post up any further response.

[Braveheart12]

Account passed to Debitas

 

 

 

Any thoughts on what response I should make? if any?

[WelshMam2009]

Try this...seems as you are disputing CCA with OC...think this is another of Cerber's great letters!!

 

Dear

 

 

I Do Not Acknowledge Any Debt to Your Company

 

I am writing in reference to your letter dated xx/xx/xxxx

 

I would ask that no further contact be made concerning this matter unless you can provide evidence as to my liability for the alleged debt in question.

 

If you are unable to provide evidence as to my liability I await your written confirmation that this matter is now closed. Otherwise I will have no option but to make a complaint to the trading standards department and consider informing the OFT of your actions.

 

[ EDIT OUT IF THEY DON'T SAY THIS] I have duly noted your intention to authorise a collector to visit my home.

OFT rules and regulations clearly state that you can only visit me at my home if you make an appointment and I have no wish to make an appointment with you. There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.).

 

Therefore take note that I revoke license under Common Law for you, or your representatives, to visit me at my property and if you persist in sending “doorstep callers” to my home, you will be reported for harassment and be liable for damages for a tort of trespass. You would also be liable for conspiring in a tort of trespass by acting in defiance of my instructions and sending someone to visit me nevertheless.

 

Should it be necessary, I will obtain an injunction.

 

 

I look forward to your reply.

or in combination with this...

 

You have contacted me regarding the account with the above reference number, which you claim is owed by myself.

 

I do not acknowledge any such debt & require any evidence of such.

 

In particular, under the Consumer Credit Act 1974 (Sections 77−79), I request a true copy of any credit agreement between myself & any client you are representing to be supplied to me within 12 working days as specified in the above Act.

You are notified that you are legally obliged to supply these documents, whether you are the original creditor or not.

I enclose a payment of £1.00 which represents the fee payable under the Consumer Credit Act.

I also request a signed true copy of the Notice of Deed of Assignment of any above referenced agreement & your confirmation as to whether it was absolute or equitable.

 

Furthermore I draw your attention to The Office of Fair Trading Debt Collection Guidance that states that it is unfair to send demands for payment to an individual when it is uncertain that they are the debtor in question & that under the Guidance it is unfair to pursue third parties for payment when they are not liable.

 

In not ceasing collection activity whilst investigating a reasonably queried or disputed debt you are using deceptive/and or unfair methods & continuance of this action will leave me with no option other than to report this incidence to the OFT & Trading Standards Dept.

 

I look forward to your reply.

 

I would just make reference to the fact that you have requested this off CRAP 1 (assume they haven't sold the debt just yet) and don't include another £1. Edited April 19, 2009 by WelshMam2009

[Braveheart12]

Looks good! I send it over the next couple of days. cheers!

[Braveheart12]

Are the letters above sufficient or should I include this one as well?

 

ACCOUNT IN DISPUTE

Dear Sir or Madam,

Account number: XXXX XXXX XXXX XXXX

I must admit that I am rather bemused as to why this account has been passed to yourselves, as it is in dispute with the **original creditor/DCA** and has been since DATE 2007.

Not only is this a breach of OFT collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998

My last letter from **original creditor/DCA** was DATE and intimated that my complaint would be

resolved on **DATE**, this obviously hasn’t happened.

As **original creditor/DCA** are now in default of my Consumer Credit Act request, OFT Collection Guidelines, *Subject Access request and have also breached *s10 Data Protection Act request , I consider this account to be in SERIOUS DISPUTE.

As you are aware while my Consumer Credit Act request remains in default enforcement action is NOT permitted, under s127 this constitutes a complete defence at law.

Now I would respectfully suggest that this account is returned to the **original creditor/DCA** for resolution of these defaults and breaches, as **New DCA** cannot lawfully pursue any enforcement activities.

If **New DCA** chooses to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.

After taking advice, I am of the opinion that any continued pursuit is in violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines

I hope that this will not be necessary and an acceptable solution can be accomplished.

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

Yours faithfully

[Braveheart12]

Has anyone had a letter like this from power2contact?

 

[cerberusalert]

They're idiots, send them this;

 

ACCOUNT IN DISPUTE

 

Your Reference:

Client reference:

 

 

Dear Sir or Madam,

 

I must admit that I am rather bemused as to why this account has been passed to you, as it is in dispute with ***DCA*** and has been since ***Date***

Not only is this a breach of OFT collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998

 

 

As ***DCA*** is now in default of my Consumer Credit Act request, Office of Fair Trading Collection Guidelines and s10 Data Protection Act request, I consider this account to be in SERIOUS DISPUTE.

 

As you are aware while my Consumer Credit Act request remains in default, enforcement action is NOT permitted; under s127 this constitutes a complete defence at law. Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Now I would respectfully suggest that this account is returned to ***DCA*** for resolution of these defaults and breaches, as ***DCA*** cannot lawfully pursue any enforcement activities.

 

If ***DCA***chooses to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.

 

I hope that this will not be necessary and an acceptable solution can be accomplished.

 

I would appreciate your due diligence in this matter.

 

Yours faithfully

Print name do not sign

 

 

 

 

Also make a complaint to the OFT because Crap1 & Debitas, although the same company, are in breach of OFT guidelines by continuing collection activities whilst you dispute the a/c.;

 

 

[email protected]

 

The Office of Fair Trading: Debt collection practices

 

tel: 020 7211 5823

[Braveheart12]

Thanks. Will do.

[Braveheart12]

Can I just check something before I send P2C this "Bemused Letter", were it say DCA should I replace this with Debitas or Capital One, I recently sent Debitas the same letter.

 

Thanks

[cerberusalert]

Replace with Crap1

[Braveheart12]

Cheers...in the post tomorrow.

[Braveheart12]

Just had a response back from power2contact thanking me for my correspondance and confirming that my letter will be forwarded on to capital one.

[Braveheart12]

Now recieved this from Cap 1

 

Perhaps I should send them a letter stating they have not provided me with a true copy of my CCA and therefore the account remains in dispute. Any thoughts?

[cerberusalert]

Considering Debitas are the in-house collection arm of Crap1 they've passed it back to themselves.

 

Yes remind them that they have not complied with your CCA request.

[Braveheart12]

haha...thats why they were so quick. I'll get a letter sorted this evening.

[diddydicky]

my response to the cap one letter like the one above was this:_

Dear Sirs,

 

Thank your for your letter of 7 May 2009.

 

I note that you confirm that the documents enclosed in your letter dated 21 April are a true copy of an original credit card agreement executed by you on unknown date.

 

I note that your have enclosed the following documents:-:

 

A three fold general leaflet entitled “Important Information about your capital one credit card” and further endorsed:- This is a copy of your agreement for you to keep.

 

A separate letter referring to my recent request and which purports to contain current terms of an agreement with you on the reverse

 

As you must realise these documents which together you allege are a true copy of an original credit card agreement do not conform to sections 60(1) and 61(1) of the Consumer Credit Act 1974 and would therefore only be enforceable by a court under s65. However, Notwithstanding other considerations the absence of a properly executed agreement containing my signature and the prescribed terms within the same document means that a court would be prevented from enforcing it under s127(3).

 

I notice that you have stated that your letter is your final response in relation to this matter therefore I assume that Unless you can produce a copy of an executable agreement within 21 days I will consider that the above account is now closed and that you will not pursue the alleged debt further