Help!Capital 1 says no signed copy needeed

[crew74]

I challenged a default placed in my file by Capital 1 and additionally asked them to provide me with a signed copy of the initial agreement and a total of the charges they have levied on my account.

They sent me their generic leaflet agreement stating that they omitted to provide me with the part including my personal details and signature. They claim they are allowed to do that.

Is it legal?? how can they prove I've agreed to anything if I haven't signed it?

They also say they don't have to provide me with a default notice?

 

Help!!!

[clemma]

They are talking rollocks. Read through this thread and send the letters recommended HERE

 

If they default you then they HAVE to send you a default notice. They have to give you 14 days to try and remedy the breach......honestly crapone live in a different world!

[crew74]

Thanks for the info, I've been looking everywhere in the forum and Am still unclear as to which legislation requires the bank to provide you with a copy of the default notice and CCA. C1 claims they have no legal requirement to provide me with the default notice? Anyone knows what I should answer? Any help or ideas appreciated!

Thanks

[citizenB]

Crew, sorry I did mean to pop over sooner..

 

Right, is this a default - placed on the CRA file or a Default Notice, which is a requirement before any steps at collecting the full balance outstanding?

[citizenB]

Car2043 provides an example to help differentiate between the two.

 

It is difficult to get your head around, Lexis. The easiest way would be with an example;

 

Say I want to enter in to an agreement with you (CCA regulated, but we'll take that for granted in this example) as a debtor wanting to purchase a BMW (other makes of car are available) using a personal loan and I agree to pay you £100 a month for 48 months. The agreement then (forget prescribed terms - for now) exists between debtor/creditor to pay £100 per month for 48 months.

 

If I miss a payment, you record this against my credit file as a missed monthly payment - "1" in arrears on my CRA file.

 

If I make the next monthly payment on time, but don't make up the arrears, you record that too - "1" in arrears for 2 months. (This shows up as "1100000..." on my CRA file.

 

I now apply for a contract mobile phone with O2. (Other networks are available) They decline me, because of my poor payment record with you - note, at this point, you haven't "Defaulted" me on my CRA file - yet!

 

Lets say I do that again next month. At this point, you send me a Default Notice, if I don't clear arrears in 14 days, you'll terminate the agreement and seek recovery of the full outstanding balance. (It's a personal loan, not a HP agreement, for the sake of having an easy to understand example)

 

I don't clear the arrears in time, so you terminate and start Court proceedings to claim the balance, after recording a Default on my CRA file. I defend and you can't supply an agreement that is properly executed;

 

Here, 1 of 2 things can happen;

 

A) Agreement irrevocably unenforceable; (s.127(3) applies)

 

At this point, I can challenge the Default entry recorded, as you haven't complied with the CCA in entering the agreement. The Court will likely rule in my favour, if you don't have a signed agreement. The debt is ruled unenforceable and you write off my remaining balance. As the debt is irrevocably unenforceable (s.127(3) applies) you are also ordered to remove the CRA Default and payment history record - I have never been under an obligation to repay you since entering the agreement.

 

B) Agreement improperly executed, but has my signature; (s.127(1)(i) applies)

 

At this point, I can challenge the Default entry recorded, as you haven't complied with the CCA in entering the agreement. The Court will likely rule in your favour, if you do have a signed agreement. The debt is ruled enforceable I get a CCJ, which I have to repay to you.

 

Conclusion;

 

In both situations, I have been negatively effected by negative payment history (default payment history) plus having a Default (a Default entry once the agreement is terminated) entry on my CRA file.

 

If I didn't know I needed to challenge the payment history under the DPA in situation A, it's likely the Court will still reach it's conclusion, but the negative data (payment history) wouldn't be challenged - I still couldn't get a contract with O2, as a result, despite the Default being removed!

 

The difference is that default (note the lowercase "d") payment history represents the actual payment history of the account, but a Default (note the uppercase "D") entry may have a more severe effect on my credit score. The process of recording of default payment history is different to the process needed for Defaulting an agreement under the CCA - even though default payments usually result in Defaults being recorded.

 

HTH?

[Andy01]

Hi I am sorry to intervine i would like some to look at my thread please "Old credit card accounts needs urgent help"

Last 3 Q's Thanks

[crew74]

Thanks for clarifying Citizen B.In my case they are saying that they can record a Default capital D without having to notify the debtor.I therefore have stopped repaying this debt and informed them of the dispute .But as it is a very small amount they do not seem bothered about enforcing the debt.I would rather they enforced the debt in which case I would settle the full amount against the removal of the Default.

[citizenB]

Crew, this is a link to all of Car2043's threads, he has had some experience with Default removal.

 

Check some of them out.

 

http://www.consumeractiongroup.co.uk/forum/search.php?searchid=2457048

 

HTH

[Jamesx81x]

Under a CCA request they can send you a copy of an agreement without your sginature etc. They just cant enforce it unless its the orginal one.

 

For you to have it declared un-enforceable you will have to go through the courts where they will ask them to produce the original agreement.

[crippy182]

crew74: "I therefore have stopped repaying this debt and informed them of the dispute"

 

I have come across people in this situation, and since you say you were re-paying the debt, this is admission of liability for the debt and you are therefore liable to pay this back.

 

If it has been registered with Equifax or other CRAs as a 'D' Default, then once it's paid in full it'll remain on your file for 6 years from the default date and will continue to have a negitive effect on your file for a number of years.

 

Also by using the card and making payments on it, this is also classed that you agree to the terms of use of the card.

[clemma]

I have come across people in this situation, and since you say you were re-paying the debt, this is admission of liability for the debt and you are therefore liable to pay this back.

 

If there is no valid CCA then any previous payments can be classed as a "gift" and any payments previously made are NOT an admission of the debt. This would not be accepted by a judge to prove liability. Only an enforceable, valid CCA can do this.

 

Also by using the card and making payments on it, this is also classed that you agree to the terms of use of the card.

 

If there is NO valid CCA therefore there are no terms and conditions. Exactly how can you agree to terms that simply do not exist?

[clemma]

Oh, regarding the default - IF there is no valid CCA then it is possible, through court action, to demand the removal of all detrimental information that has been recorded on you credit file. If your have not consented to them sharing information, then they simply can't. It may be a battle, but would be worth it!