Stagparty -v- Capital One & FTC

[Stagparty]

Hi All

 

I could really do with some help regarding this problem right now - my head is spinning and I can't see the wood from the trees.

 

I got into financial difficulties and contacted my creditors including Cap One about my situation. Cap One have not tried to help or cooperate at all.

 

In early August they sent me a Default Notice as shown below

 

This is side 1

This is side 2

 

The account wasn't opened until June 2007, so I'm not sure if CCA'ing them will help.

 

Could someone please advise on the validity (or not) of the Default Notice please?

 

The one thing I think I have spotted is that it doesn't give an actual date for the remedy - just says 28 days after the date of this letter.

 

If the DN isn't valid then Cap One have a problem as they have terminated the account and passed it on to FTC (who are I think part of Capquest). They have tried to call a couple of times but I haven't answered and I've had this letter from them today

 

FTC Letter

 

Apparently I only have until 18 September 2009 to respond satisfactorily or "further action will be taken". I'd quite like that "further action" be that they send it back to Cap One.

 

Could anyone suggest a decent reply to their letter or give me some reassurance as to the threats contained in it please. Right now, my response is likely to be along the lines of "Do One" which probably wouldn't help the situation. Do I also need to write to Cap One? Also Cap One haven't told me who they are appointing so I have no absolute knowledge that FTC are acting for Cap One at all.

 

Thanks for all your help, it's really appreciated.

SP

[mr.ton]

What they class as "satisfactorily" & what is satisfactory to you is 2 different things.

You have the power over them, not the other way round.

If it transpires that you have to pay anything, then you pay what you can afford & not what they want you to pay.

[Stagparty]

Thanks for that Mt Ton - my response was going to be to send them a token payment as I have been doing to Cap One. You are right though, they can't have what I don't have no matter what they say or do.

 

I'd appreciate an opinion on the DN, as if it is defective and as they have terminated the account, then the debt would drop by about 90%.

[Stagparty]

We seem to have a guest viewing the thread - feel free to register and contribute - you don't have to hide!

[mr.ton]

The guests could be anybody...simply someone who hasnt signed in yet, someone just nosing in who isnt a member yet or even someone from the industry itself, as they are on occassions

[Revenant]

FTC have fallen foul of OFT Guidelines .... short clip below

“ PUTTING PRESSURE ON DEBTORS OR THIRD PARTIES IS CONSIDERED TO BE OPPRESSIVE.”

This includes:

• Contacting you too frequently
  
• Pressurising you to sell property or take out more debt
  

They should not be advising,requesting,suggesting payment by Credit card as in simple terms that incurring a debt to pay one

[Stagparty]

Thanks for pointing that out Revenant - I'll make sure I mention that in the letter to them.

 

Any thoughts on the DN please anyone?

[Pinky69]

Clause 8 is from current Terms and Conditions. If they have not sent you a copy of the original Terms and Conditions in which it states they can vary the T&Cs then their alleged breach of the agreement is meaningless.

 

There is some controversy about whether an actual date should be set rather than a number of days but both the CCA 1974 as amended in 2006 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 state it must be (14) days from the date of service. I advise you to read the latter Act in its entireity and section of 87 (1) of the CCA 1974.

 

Where they have the words in the compulsory texts underlined, they are supposed to make them "more prominent yet" - they have not done so. This is not a De Minimus matter - it must be as laid down in the Regulations.

 

THEY HAVE DONE THIS

 

to make it "more prominent yet" from the surrounding text,

 

THEY MIGHT HAVE DONE THIS or made the key words a different colour.

 

What they will do if the breach is not remedied must be "clear and unambiguous".

 

"We may add reasonable costs" is not clear or unambiguous. They cannot add costs that are not in the agreement ot ordered by a court.

 

"We may place your account.........or sell your account with a DCA ...... who may do......." This is not clear or unambiguous. Will they or won't they place the account? - will they or won't they sell it? and they cannot know what a DCA will or won't do - that is pure speculation intended to put pressure on to the recipient and is not clear and unambiguous.

 

They must give a date when all above will happen (see the Regulations). They have not done so.

 

CrapOne's stock reply to this is that their DNs are drawn up by legal professionals. My reply to that was they need to get new legal professionals and they must be the same ones that drew up their toilet paper application forms that they try to pass off as agreements.

 

If you have had a letter confirming termination of the account, tell them they have breached S87 (1) of the CCA 1974 by terminatimg the account after issuing an unlawful DN and in doing so have rescinded the account.

That means they can only claim any arrears. CrapOne don't know that - claiming the arrears - they don't know what day of the week it is, so don't tell them they can claim anything.

 

I must tell you they will put a default on your credit reports. I am about to take them to court to get it removed.

[Stagparty]

Thank you so much for taking the time to make such a detailed response Pinky.

 

I don't have the original T's & C's so I guess I should CCA them and DSAR Cap One now?

 

Should I also do the same to FTC?

 

Do you think some sort of "holding letter" to FTC along the lines of "the account is in dispute due to a defective DN" is appropriate? Or just "I've never heard of you before, Cap One haven't advised me you are acting for them - please prove the debt" kind of letter?

 

The DN on the credit rating can wait a while until I'm ready to deal with it - I already have 3 courtesy of Egg (who issued them all whilst in breach of a CCA) so who knows, I might have a mass litigation session one day to get them removed.

[vint1954]

The words must be unambiguous. They need to give an ammount to pay and a date top pay by in order to rectify the breach.

 

Plus all the things that Pinky has added:D

 

I would be inclined to ask for a copy of your agreement.

 

14 days from posting, if no agreement is sent, then the account goes into dispute.

 

Send the letter, first class, recorded and signed for.

Dear Sir/Madam

 

Re account no xxxxxxxxxxxxxxxxxxx

 

With reference to the alleged debt to your company, this letter is a formal request of true copy of a signed and dated executed credit agreement for the above account number, under the terms and conditions of section 78(1) of the CCA act 1974. I enclose the statutory maximum fee of £1.00

 

I expect you to comply fully and properly with this request, within the statutory time limit.

I enclose a postal order no xxxxxxxxxxin the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose.

 

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee.

 

I look forward to hearing from you.

 

Yours faithfully

 

[Stagparty]

Thanks Vint - there was an amount on the DN - I deleted it out just in case I could be identified by it. But there was no actual date - just "28 days from the date of this letter".

 

Also they put "If you've already paid this or have made a payment arrangement with us - thank you. Please ignore this letter."

 

It seems crazy that they should include something like that - it just confuses matters. Shouldn't a DN be just that, with anything that needs commenting on in an accompanying letter?

[Pinky69]

Don't mention anything about the defective DN or termination letter to CrapOne or any DCA until you have sent a SAR to CrapOne and received a response. You don't want to risk any hiccups because if everything isn't watertight they could send you another DN if the account hasn't been terminated. Tell the DCA that you have sent an SAR to CrapOne and will have no correspondence with them until you receive a reply from CrapOne.

[Stagparty]

Thanks Pinky - I do have another letter from Cap One from last week headed. In it they categorically state that they have terminated the account. Would it be useful for me to scan it so you can read it?

[Stagparty]

This is the letter Cap One sent.

[Pinky69]

I have one to match! Now you can tell CrapOne they have rescinded the account unlawfully by issuing an unlawful DN and terminating the account in breach of the CCA 1974 S 87 (1). That's all you have to say - keep the details of why in case they try to go to court and you may need to use the details in court to get rid of their default. You can also tell the DCAs that there is no alleged debt to collect as CrapOne unlawfully rescinded the account on (date on the termination letter). I would stil SAR them for all the information they have on you.

[Stagparty]

Thanks Pinky - may I just clarify... SAR Cap One or SAR the DCA?

 

May I PM you with a quick question?

[Pinky69]

SAR CrapOne - sorry - I don't do PMs.

[Stagparty]

Thanks for that - no probs re the PM

 

I was also thinking of including the bit about withdrawing permission for anyone to visit my premises and formally telling them that calls will be recorded in the same letter. Do you think that's OK?

[vint1954]

Dear xxxxxxxxx,

 

Ref xxxxxxxxxxxxxxxxxxxxx

 

This account is in serious dispute with xxxxxxxxx, the details of which are none of your concern. You must however read and digest the contents of this letter.

 

TAKE URGENT NOTE:

 

I DO NOT WISH TO RECEIVE ANY REPRESENTATIVE OF YOUR ORGANISATION, OR INDEED AN AGENT OR REPRESENTATIVE EMPLOYED BY ANY ORGANISATION THAT YOU ISSUE INSTRUCTIONS TO.

 

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 DO SO, THEN YOU WILL BE LIABLE FOR DAMAGES FOR A TORT OF TRESSPASS AND ACTION WILL BE TAKEN, INCLUDING BUT NOT LIMITED TO , POLICE ATTENDANCE.

 

I also caution you here that should you ignore my request on this point, the actions of your representative(s) will happily be recorded either by CCTV or by telephone recording equipment – whichever is applicable. Accordingly I reserve the right to use any evidence of you or your representatives’ ignoring this request in connection with any actions that I choose to pursue, including media exposure.

 

Should it be your intention to disregard my wishes, and break your obligations, please be advised that the following rules also apply, as laid down by the OFT in respect of debt collection, and that you, as a holder of a consumer credit license, are obliged to follow:

 

The areas of the OFT guidance which applies to you in this instance are:

 

 

Debt collection visits

2.12 Examples of unfair practices are:

 

a. not making the purpose of any proposed visit clear, for example, merely stating that collectors or field agents will call is not sufficient

 

f. visiting or threatening to visit debtors without prior agreement when the debt is deadlocked or disputed

 

Deceptive and/or unfair methods

 

2.8 Examples of unfair practices are as follows:

 

k. not ceasing collection activity whilst investigating a reasonably queried or disputed debt.

[Stagparty]

Vint - you are a star. Thank you very much. The Cap One letter should be interesting too... have you any pearls of wisdom to use on that one?

[Stagparty]

Does anyone have any suggestions as to how to word the letter to Cap One please? Thanks in advance!

[Stagparty]

Damn - a new telephone number for FTC 02084958808

 

Vint - have you any suggestions as to the wording of the letter to CapOne please? Thanks very much.

[vint1954]

xxxxxxxxxxxxxx September 2009.

 

Account remains in serious dispute.

 

Dear xxxxxxxxxxxxxx,

 

Re account no xxxxxxxxxxxxxxxxxx Official complaint.

 

I am in receipt of your letter dated 4txxxxxxxxxxxxxxxxxxh September 2009 and note the contents.

 

You have previously stated that you do not consider the account to be in dispute. I however do and I believe that I have demonstrated on numerous occasions why. It appears that xxxxxxxxxx choose to ignore the laws and regulations surrounding the supply of this document, instead using their own flawed interpretation.

 

You have failed to comply with my request under s78 of the consumer credit act 1974. You insist that a xxxxxxxxxxxxxxxxxxx, serves as a “True Copy” of an agreement. xxxxxxxxxxxxxxxxx it does not contain any of the prescribed terms, as well you must be aware. As such, it cannot be a true copy, containing the information that I require and that the Law entitles me to. Your comment stating that I would have had sight of the prescribed terms, is irrelevant. I do not recall ever receiving a document with these terms contained within a signed document.

 

Your paragraph relating to myself not contacting you regarding this account, is misleading. My previous letter to you, detailed the numerous occasions that I have contacted you in writing on xxx occasions.

 

A defective Default Notice was issued to me on the xxx 2009, despite the account being in dispute at that time, with xxxxxxxx having not supplied me with a copy of an agreement, or indeed responded in any way to my s78 request of xxxxx 2009. The subsequent letter dated xxxxxxxx, is clearly a Termination Notice. I have previously accepted your unlawful rescission of this agreement. You will need to refer to s86 & s87 of the CCA1974, to understand the implications to xxxxxxxxxxx.

 

Again, I still require xxxxxxx to provide me a “True copy” of any agreement held. I do not accept that xxxxxxxxxxxxx, which cannot be tied to any prescribed terms, as a “True Copy”. The xxxxxxxxxxx does not allow me to assess if there is a problem with any agreement and the way that it has been handled and discharged. I have also requested this document under CPR31.16, however this request has again been ignored by the Bank. You will be aware that the document required under these regulations must be a copy of the original.

 

I would add that this is my final position on this matter and that I now intend to seek further professional assistance in this matter, with such costs ultimately being claimed back from xxxxxxxx.

Edited September 16, 2009 by vint1954

[vint1954]

You will need to decide if you want to mention the faulty DN or not, but I have, just to register that I have accepted the unlaful termination

[Stagparty]

Thanks for your draft Vint - I'm afraid I'm a little confused though...

 

The situation is as follows - The account was opened in June 2007. Ran into payment difficulties early 2009 so contacted them. Made token payments since then. Got the deault notice etc as specified earlier in the thread.

 

I haven't CCA'd them - didn't really see the point as it was a post April 2007 agreement. Should I do that? Even as a delaying tactic?

 

I have SAR'd them today.

 

I think the relevant paragraph from your letter is the one starting "A defective default notice". As I am agreeing to their unlawful rescission do I need to put that the account is in dispute or not?

 

I feel stupid - I really can't get my head round this at the moment