Cap 1 CCA Help

[St1973]

Termination notice just been issued with a default......

[St1973]

Just got a letter from Friedricksons demanding the payment for the Capital One account. Have Cap one sold this on to them?

 

Does anyone have a template response I could write back with?

[cerberusalert]

http://www.consumerforums.com/resources/templates-library/86-debt-collectors/574-letter-when-account-has-been-passed-on-whilst-agreement-request-is-in-dispute

[St1973]

UPDATE

 

Cap one sold my debt onto a DCA who communicated the usual threats. In he meantime, the FOS wrote to Cap one and I informed the DCA of FOS involvment. They have since put the account on HOLD pending further investigations with Cap one!

 

Im taking this as good news!

[St1973]

Crap one have responded with the following. They have found my signed document but have hopelessly sent some T&Cs along also which are obv not part of the same document. Would appreciate your views?

 

Thanks

Cap.pdf

[cerberusalert]

They have found my signed document

Which is unenforceable because it doesn't contain the prescribed terms. The T&Cs bear no relationship to it.

[the_shadow]

Note the supplying of the "signature" page only, no t&c that are of that document you signed

 

Goes along with what their defence of my claim stated, (2004 cap one app form) They scan the front page in and destroy the doc.

 

If they have the back of the agreement/application which supposedly contained the prescribed terms whats the reluctance in showing it... after all normally they state the signature can be removed so dont send anything with the signature but supply tons of terms and conditions... in your case they have done the opposite

 

S.

[St1973]

Well I have them on Two fronts...A Dodgy DN with Termination notice and an unenforcable agreement.

 

What do I do next and how do I respond?

[St1973]

I received this from Captial One claiming to be a credit agreement.

 

Again, no obvious link, but look closely at the signature page. It says "simply sign this box and return this FULL PAGE agreement"

 

Not exactly "four corners" is it?

Cap.pdf

[cerberusalert]

They're clever peeps at Crap1, they can manipulate the laws of physics and manage to include all those T&Cs on the reverse of a piece of paper which is 12 times smaller at the front than it is on the reverse.

[St1973]

Oh, and this little GEM also....so WHO exactly is chasing me for the alleged debt???

dca_0001.pdf

[beachcomber60]

Looks like Freddies acting as a collection agent for capone

 

Didnt Debitas harass you first?

[St1973]

Nope, straight to Uncle Fred!

 

I would love to get an opinion on a suitable response?

[cerberusalert]

Send this to Crap1;

 

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

This account is in Dispute .

 

On xx/xx/2009 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a mere application form which did not comply with the requirements of the Consumer Credit Act 1974.

 

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say none of the terms are present in the document

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states

 

127(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).

 

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I refer to page 5 of the guidance which states;

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment.

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

I respectfully request a response to this letter in 14 days

 

 

I trust this out lines the situation

Print name do not sign

 

 

Send this to Uncle Fred; http://www.consumerforums.com/resources/templates-library/86-debt-collectors/574-letter-when-account-has-been-passed-on-whilst-agreement-request-is-in-dispute

[DonkeyB]

Another crass example of making it up as they go along. They know full well that is a totally unenforceable document, It is not an agreement of any kind. The T&Cs are relatively recent and were not part of that original document, nor are they referred to in it. Just printed off their cranky old Amstrad WP system probably.

 

Now it's time to reprise your complaint to the FOS, after you have put the account in dispute. They have stated categorically this is a true copy of the CCA - well, they're f**ked..

[DonkeyB]

Freds, eh? Does that mean you might get a nice bit of 'enforcement' from Uncle Bryan? Nice also to know you're been confirmed as living at the place you keep sending them letters from! Sherlock Holmes has a rival!

 

(And there's a village somewhere missing its idiot...)

[St1973]

I know, the cheek of them. Its some strange threat that actually made me laugh.

 

cerberusalert, thanks for the letter temp, but should I mention within it that the agreement is not within the four corners nor related to the laughable signature sheet they have sent? Also, should I copy it to the FOS, with the letters from Uncle Fred?

[cerberusalert]

I know, the cheek of them. Its some strange threat that actually made me laugh.

 

cerberusalert, thanks for the letter temp, but should I mention within it that the agreement is not within the four corners nor related to the laughable signature sheet they have sent? Also, should I copy it to the FOS, with the letters from Uncle Fred?

 

You could if you want to, but the chances of any of them having the reading ability to get past Dear is debatable.

[St1973]

I suspect so.

 

I will copy the FOS and re-ignite my dispute. And send something nice to Uncle Fred, show him I appreciate him letting me know were I live!

[St1973]

I have sent this to Cap one......

 

Dear Sir/Madam

This account remains in dispute.

 

In May 2009 my solicitor wrote to you requesting that you supply me a true copy of the executed credit agreement for this account along with permission to supply such documentation to him.

In response to this request they were supplied a mere ‘application form’, signed and NOT containing the prescribed terms, which did not comply with the requirements of the Consumer Credit Act 1974.

In June 2009, you were informed of this by my solicitor who requested that you comply with the act and not pursue the alleged debt. You finally responded claiming that a separate sheets of T&Cs, containing the prescribed terms fulfilled your end of the agreement.

 

The documents sent purporting to be a credit agreement does not contain any of the prescribed terms nor do they have any relation to the signed document, within the four corners of the signed agreement as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the "1974 Act" sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553

 

The prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and 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--

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.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.

 

Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states

 

127(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).

 

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

 

Further more, since the prescribed terms referred to above do not appear within the ‘Four Corners’ of the agreement you have supplied, the agreement is rendered totally unenforceable, as the prescribed terms must be contained within the signed agreement and not a separate document, case law confirms this opinion

 

I refer you to the judgment of TUCKEY LJ in the case of Wilson and another v Hurstanger Ltd [2007] EWCA Civ 299

 

"[11] Schedule 1 to the 1983 Regulations sets out the "information to be contained in documents embodying regulated

consumer credit agreements". Some of this information mirrors the terms prescribed by Sch 6, but some does not. Contrasting the provisions of the two schedules the Judge said:

 

 

"33 In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s 61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which

are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the

minimum terms) are to be found in Schedule 1."

 

Therefore the prescribed terms cannot be contained within a separate document outside of the signed agreement.

 

In addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

As it stands, the document supplied you is not a valid credit agreement nor is it enforceable by any court

 

What I Require

 

Firstly, I require all correspondence in writing from here on; any persistent attempts to contact me by phone will be reported to Trading Standards, the Financial ombudsman service and the Office of Fair Trading. In addition I may report your conduct to the Solicitors Regulation Authority and the Law Society. The financial Ombudsman Service has already been informed of this dispute.

 

I would like to draw your attention to the fact you do not hold a signed copy of a credit agreement containing the prescribed terms. Therefore the fact that you do not hold such document means that you cannot obtain an enforcement order in court. The case of Wilson-v-FCT sets this out as previously referred to above

 

However should you believe that you have grounds to enforce this agreement, please provide me with a signed copy of the credit agreement that you would consider relying upon? Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

The agreement you have supplied as it stands is unenforceable, should you be unable to produce a compliant agreement it would be in everyone’s interest to consider the matter closed and for you to write the debt off. You should also review your referral to a DCA who are also illegally persuing this alleged debt.

I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages. I respectfully request a response to this letter in 14 days.

All correspondance is being copied to the Financial Ombudsman Service so they have an up to date case file.

 

I trust this out lines the situation

Regards

[St1973]

Also, fired this back to Uncle Fred....

 

Dear Sir or Madam,

 

I am in receipt of your letter/card dated 07/10/09

Firstly I thank you for confirming my place of residence.

 

Secondly I would like to state that this account remains in dispute with Capital One and has been since Feb 09. In addition, as the FOS is still investigating your client, your are NOT permitted by law to threaten for or demand any payment.

Not only is this a breach of the Consumer Protection From Unfair Trading Regulations 2008 in line with the Office Of Fair Trading's debt collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998

 

My dispute has NOT been answered.

 

As Capital One are now in default of my Consumer Credit Act agreement 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.

 

Consequentially any legal action you pursue will be reported to the financial authorities and averred as both UNLAWFUL and VEXATIOUS.

 

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

 

If you choose 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 Consumer Protection From Unfair Trading Regulations 2008 in line with the Office Of Fair Tradings 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.

[the_shadow]

You could if you want to, but the chances of any of them having the reading ability to get past Dear is debatable.

 

haha that is so true... not sure ellie and her band of merry workers (see what I've done there ) know how to open the mail, let alone read it.

 

S.

[the_shadow]

I suspect so.

 

I will copy the FOS and re-ignite my dispute. And send something nice to Uncle Fred, show him I appreciate him letting me know were I live!

 

Beware of complaining to the FOS about credit agreements and the non-production of said agreement, quite often they'll come down stating that only the courts can judge whether a specific agreement is enforceable and in their eyes you have borrowed the money and should pay it back.

 

S.

[St1973]

yeah, I am aware of that, but im just playng the game. So far they have asked Crap one to supply an agreement. Which the have obv cobbled together...To be honest. Im not even going to send the FOS anymore letters. Bit of a benign organisation to be honest

[DonkeyB]

Then again, every time a complaint is logged at the FOS, doesn't it cost CrapOne £500?