Capital One - CCA Request - No Response

[experience]

I've had a few default notices from Bryan Carter & Co solicitors for my Capital One credit card.

On the 16th july i sent them a CCA request, its now been 12+2 days since and i havnt received a reply.

Should i now send them an account in dispute and if so should this go to Bryan Carter the solicitor or directly to Capital One?

I was thinking of sending this template:

ACCOUNT IN DISPUTE

 

Re: My request under the Consumer Credit Act 1974

 

Further to my request under the above act, your attention is drawn to the fact that this account is subject to a serious dispute. On 16/07/09, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply with my request. Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

 

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing ( 12 working days + 2 ) to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly as no agreement has been supplied on request, you have not complied with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in S.78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (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 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.

 

To clarify S.61(1) states

 

(1)A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

 

In addition the prescribed terms referred to in section 60 CCA1974 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

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced..

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as you become compliant with my request. As you are still not in compliance with my request I insist that the following takes place with immediate effect.

 

All entries which refer to missed payments be removed from my credit file

All collection activities cease with immediate effect until you comply with my request from 16/07/09 or such time as a court makes an enforcement order.

In addition, 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

 

What I Require.

 

I require that you send me a true signed copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well

 

No other correspondence will be accepted

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful

 

I trust this out lines the situation

 

Yours faithfully

[Pinky69]

Sometimes letters escalate pressure to pay. I would wait until they contact you again then send the letter - to Bryan Carter when they write.

[experience]

By leaving it wouldnt they be able to proceed with court proceedings -

If the account is in dispute wouldnt that put a halt on it?

[Pinky69]

They are not going to court if there is no agreement and you have asked for a copy. They may threaten court but with no agreement that's all it is - threats. Capital One didn't issue agreements before 2007. What you will get is a copy of your application form with no prescribed terms and current Terms and Conditions. That is as enforceable as toilet paper.

[Bazooka Boo]

IMO, whoever you CCA'd and has failed to provide the CCA should receive the account in dispute letter.

[Pinky69]

I always found less was better and more effective but each to their own. I never pursued a DCA and I have had all my debts written off with the minimum of correspondence. I am always amazed that people feel they need to be doing something before they know what the bank/Dcas are thinking but as I said that is just my opinion.

[Bazooka Boo]

I quite agree Pinky, sometimes less is more, besides half the time with these DCA's they ignore your letters anyway, but experience posed the question as to who he should send the account in dispute letter to, the DCA or the OC,

I was informing him that if he wishes to send a response the account in dispute letter should go to whoever was sent the CCA request, as it is then up to them to pass the information on...but as I said before, they will have ignored his request and continue to act with contempt:D