Capone/cabot v OH (disputed Acc)

[beachcomber60]

Am I correct in saying (I'm sure I read somewhere on the forum) that capone DN's if states arrears to be paid within a certain number of days instead of a remedy by DATE could make the DN invalid. Also if they terminate the account & issue a DN for the arrears only then they cannot chase the balance of the account if the arrears have been paid.

[lexis200]

This is a hot topic at the moment I think. It seems to be a 50/50 split, with one set thinking it's catastrophic for them, and the others thinking it's a bit of a pain, but they'll end up being ok.

 

Although I can see the Act does very clearly state several times 'a date not less than..', which would imply to me they should put an actual date down, I just can't shake the feeling that a judge would simply say that as they have dated the letter and said something like '28 days from the date on this letter', that they have given ample time.

 

It would be different if the Act said 'a date shown as a day, month and year', as that would be indisputable. Unfortuanetely although we tend to feel that's exactly what it means, it seems to me that it is still too open to interpretation.

 

In short I would be very dubious about going into court if that was my only defence.

 

However, Pinky69 is doing just that, and I hope she screws them to the wall with it!! Not least because mine has the 28 days too, and I was really miffed when I saw that:(

 

Hey ho, I've got goodun's as well, so it's not all bad:D

[beachcomber60]

This is a hot topic at the moment I think. It seems to be a 50/50 split, with one set thinking it's catastrophic for them, and the others thinking it's a bit of a pain, but they'll end up being ok.

 

Although I can see the Act does very clearly state several times 'a date not less than..', which would imply to me they should put an actual date down, I just can't shake the feeling that a judge would simply say that as they have dated the letter and said something like '28 days from the date on this letter', that they have given ample time.

 

It would be different if the Act said 'a date shown as a day, month and year', as that would be indisputable. Unfortuanetely although we tend to feel that's exactly what it means, it seems to me that it is still too open to interpretation.

 

In short I would be very dubious about going into court if that was my only defence.

 

However, Pinky69 is doing just that, and I hope she screws them to the wall with it!! Not least because mine has the 28 days too, and I was really miffed when I saw that:(

 

Hey ho, I've got goodun's as well, so it's not all bad:D

 

Thanks Lexis,

 

I'm working - wots your excuse for being up at this time of the night

 

Just looking for kinks in their armour, 'alledged' agreement is unenforceable & tryin to get capquest on their backfoot.

 

Only thing I got is unlawful/unfair charges ( only about £200), although I dispute the debt my first response from capquest was that c1 stated I havent disputed the debt, after me sending copies of my letters c1 responded that the dispute had been resolved ? ? ?

 

Just concerned that capquest seem to like SD's at the moment - they dont own the debt (yet).

 

As always

 

Beachy

[citizenB]

This is a hot topic at the moment I think. It seems to be a 50/50 split, with one set thinking it's catastrophic for them, and the others thinking it's a bit of a pain, but they'll end up being ok.

 

Although I can see the Act does very clearly state several times 'a date not less than..', which would imply to me they should put an actual date down, I just can't shake the feeling that a judge would simply say that as they have dated the letter and said something like '28 days from the date on this letter', that they have given ample time.

 

It would be different if the Act said 'a date shown as a day, month and year', as that would be indisputable. Unfortuanetely although we tend to feel that's exactly what it means, it seems to me that it is still too open to interpretation.

 

In short I would be very dubious about going into court if that was my only defence.

 

However, Pinky69 is doing just that, and I hope she screws them to the wall with it!! Not least because mine has the 28 days too, and I was really miffed when I saw that:(

 

Hey ho, I've got goodun's as well, so it's not all bad:D

 

Almost certainly if the letter states "28" days then I can see a DJ saying that isnt a problem. However, if it states "14" days then that is not permissible.

 

 

 

88 Contents and effect of default notice

 

(1) The default notice must be in the prescribed form and specify-

(b) exercisable at will and exercised at any time after his death.

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as

terminated, restricted or deferred, or

(e) to enforce any security.

 

(a) the nature of the alleged breach;

(b) if the breach is capable of remedy, what action is required to remedy it

and the date before which that action is to be taken;

 

 

 

That one little word "must", I think in this instance mean exactly that. Not should, perhaps, or may be.

Edited June 6, 2009 by citizenB

[beachcomber60]

Well I guess this is now firmly in dispute (sorry capQ)

 

Sent off letter reclaiming charges (£280) our ER sent a letter back saying their charges are fair and I did sign an agreement and return it when the account was opened ( Oh really - please may I have a copy of that original agreement ! :grin: ).

 

As a gesture of goodwill she has offered me ------------------- £12!

 

She goes on to say that while considering her (very generous) offer it's important to maintain payments to the account as failure to pay on time may result in the card being temporarily suspended.

 

Suspended ? I was 'Terminated' before Xmas

 

Beachy

[lexis200]

Personally I think it's nice of Ellie to keep writing to you when she's on maternity leave.

 

They must send her piles of mail every day just so that she can personally hit the 'template number 5' button to respond to it.

[citizenB]

This is a hot topic at the moment I think. It seems to be a 50/50 split, with one set thinking it's catastrophic for them, and the others thinking it's a bit of a pain, but they'll end up being ok.

 

Although I can see the Act does very clearly state several times 'a date not less than..', which would imply to me they should put an actual date down, I just can't shake the feeling that a judge would simply say that as they have dated the letter and said something like '28 days from the date on this letter', that they have given ample time.

 

It would be different if the Act said 'a date shown as a day, month and year', as that would be indisputable. Unfortuanetely although we tend to feel that's exactly what it means, it seems to me that it is still too open to interpretation.

 

In short I would be very dubious about going into court if that was my only defence.

 

However, Pinky69 is doing just that, and I hope she screws them to the wall with it!! Not least because mine has the 28 days too, and I was really miffed when I saw that:(

 

Hey ho, I've got goodun's as well, so it's not all bad:D

 

Lexis, I have sent you a pm:D

[citizenB]

Well I guess this is now firmly in dispute (sorry capQ)

 

Sent off letter reclaiming charges (£280) our ER sent a letter back saying their charges are fair and I did sign an agreement and return it when the account was opened ( Oh really - please may I have a copy of that original agreement ! :grin: ).

 

As a gesture of goodwill she has offered me ------------------- £12!

 

She goes on to say that while considering her (very generous) offer it's important to maintain payments to the account as failure to pay on time may result in the card being temporarily suspended.

 

Suspended ? I was 'Terminated' before Xmas

 

Beachy

 

If you are writing back refusing this offer, then be sure to include the following:

 

The Office of Fair Trading made a statement on 5th April 2006 regarding Credit Card Charges.

 

Where credit card default charges are set at more than £12, the OFT will presume that they are unfair, and is likely to challenge the charge unless there are limited, exceptional business factors in play. A default charge is not fair simply because it is below £12. Setting a threshold for intervention is a pragmatic pro-consumer action that is designed to give the industry the opportunity to change its practice without litigation. It is supported by detailed guidance to the industry as to how to reduce the likelihood of public enforcement

 

and

The OFT is not proposing that default fees should be equivalent to the threshold, and a court will certainly not consider that a default fee is fair just because it is below the threshold.

 

This is a link to the statement on their website:

 

The Office of Fair Trading: Current credit card default charges unfair

The OFT said that action would automatically be taken in respect of charges over £12 and that this was not intended to signal to companies that £12 was necessarily fair.

http://www.oft.gov.uk/shared_oft/rep...ts/oft842a.pdf

 

You could if you wish say that you are prepared to accept the amount offered as a partial settlement.. but that might complicate matters.

 

It might be a good idea to give them one last chance to repay the charges in total or you will send a LBA where if they still refuse to pay in full, you will proceed with court action without further notice to them. You will then be asking a court to provide a detailed breakdown of their charges.

[beachcomber60]

Well the thumb screws have been tightened on me, letter from HL informing me that a MUST ring capQ by next Friday to set up a payment arrangement or they start litigation against me.

 

Any suitable response to them?

 

Whats there next step - reduced offer or a letter from their case worker Marcus wotever his name is.

 

I do feel a little negative today, been trawling the forum looking at C1 threads - seems peeps fight them and then everything goes quiet - do they give up pay up or does it mean their account dispute is in status quo and waiting the six years?

 

Beachy

[citizenB]

Well the thumb screws have been tightened on me, letter from HL informing me that a MUST ring capQ by next Friday to set up a payment arrangement or they start litigation against me.

 

Any suitable response to them?

 

Whats there next step - reduced offer or a letter from their case worker Marcus wotever his name is.

 

I do feel a little negative today, been trawling the forum looking at C1 threads - seems peeps fight them and then everything goes quiet - do they give up pay up or does it mean their account dispute is in status quo and waiting the six years?

 

Beachy

 

If they are threatening Imminent legal action, then send them a copy of the letter in the following link, suitably amended of course.

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1800199.html

 

If they are just hassling you on behalf of Capquest, then I would just send them something short and sweet.

 

Dear Sirs,

 

ACCOUNT IN DISPUTE

 

I am surprised this account has been passed over to you in that this account is in serious dispute and has been since (whenever you first started playing pingpongletters with OC).

 

Please see the extract from the OFT Guidelines, which I am sure you are familiar with.

 

OFT GUIDELINES

 

Deceptive and/or unfair methods

 

2.7 Dealings with debtors are not to be deceitful and/or unfair.[

 

2.8 Examples of unfair practices are as follows:

 

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

I trust this matter will now be returned to the Original Creditor for resolution of my complaint.

Yours etc,

 

*********************************

You may also be interested to see what the OFT has to say, when you make a complaint to them.[

This is what the Office of Fair Trading has to say:

 

“We have noted your concerns regarding the provision of a copy of the executed credit agreement and would like to make the following comments.

The general effects of sections 77-79 requires the creditor/owner (in the case of a hire agreement) under an agreement for (fixed -sum credit, running account credit and hire agreement) to provide the debtor/hirer with a copy of the executed agreement and a statement of account on request.

If a creditor/owner fails to comply with a valid request within a period of 12 days (not including the date of receipt of the request) he may not enforce the agreement at all. This prevents enforcement with or without a court order.

We do understand your concerns in this matter but please do remember however that once the creditor/owner complies with the request albeit out of time, he may once again enforce the agreement.

A ‘true copy of an agreement principally consists of the terms and conditions of the agreement and the statutory content of the agreement. The name, address and signature of the debtor do not have to be provided. Additionally, the creditor must supply the total sum paid under the agreement by the debtor; the total sum which became payable under the agreement but remains unpaid; and the total sum which has become payable under the agreement but remains unpaid by the debtor (the latter two must include the amounts comprised in that total sum and the date when each is/was due). However, the copy must be a copy. It need not be exact on immaterial points, but cannot be a conjectured reconstruction. If the trader has no original copy, the trader will have difficulty showing that he has complied with the regulation by supplying a ‘true copy’, since nobody would know what was in the original. When the trader comes to enforce the debt in court, he needs to have a signed copy of the agreement in order to enforce. As the law stands currently, he cannot otherwise.

We note your concerns that in the absence of a copy of the original agreement someone’s liability for a debt can only lead to further query. However in circumstances like this we would view it as an Unfair Practice under section 25(2)d of the Act and relevant to license fitness if a trader failed to investigate and to provide details as appropriate when a debt is queried of disputed.”

 

[diddydicky]

well i learned something today!

 

i was not aware that the OFT consider that the creditor does not need to supply terms and conditions with the customers name and/or address

 

no bloody wonder the OC' s are getting away with providing generic T & C's

 

what a useless bunch of winkers the OFT are

[beachcomber60]

HL Legal in association with Sampson & Co

 

A firm of Solicitors who dont put their address or telephone number on their letterhead, however their 'if undelivered please return' address is EXACTLY the same as Capquest - could they be one of the same?

[sunflower99]

well i learned something today!

 

i was not aware that the OFT consider that the creditor does not need to supply terms and conditions with the customers name and/or address

 

no bloody wonder the OC' s are getting away with providing generic T & C's

 

what a useless bunch of winkers the OFT are

I agree with you DD and did learn that a while ago in a thread about CCAS that the crediter can get away with just supplying some unsigned terms and conditions in response to a s78 which makes it a fruitless exercise but at least thank gooddness they can not rely on that to enforce it in court and still need to supply an original correctly executed one in court which will cause them problems if they dont have one:D and by us making the move of requesting one makes the crediter aware we llikely know this.In the case Wilson V first counties Trust it says in this ruling and says specifically a document signed by the debtor NOT a COPY of the agreement signed by the debter!

[beachcomber60]

HL Legal in association with Sampson & Co

 

A firm of Solicitors who dont put their address or telephone number on their letterhead, however their 'if undelivered please return' address is EXACTLY the same as Capquest - could they be one of the same?

 

?

[citizenB]

well i learned something today!

 

i was not aware that the OFT consider that the creditor does not need to supply terms and conditions with the customers name and/or address

 

no bloody wonder the OC' s are getting away with providing generic T & C's

 

what a useless bunch of winkers the OFT are

 

They do seem to go with the flow in this respect.

 

HL Legal in association with Sampson & Co

 

A firm of Solicitors who dont put their address or telephone number on their letterhead, however their 'if undelivered please return' address is EXACTLY the same as Capquest - could they be one of the same?

 

I think they are obliged to put their Company Name, Address, telephone number, registered office on their letter heads.

 

TBH though I am not sure whether solicitors have these same rules. Have a word with Companies House first, then the Solicitors Regulatory Authority.

[citizenB]

well i learned something today!

 

i was not aware that the OFT consider that the creditor does not need to supply terms and conditions with the customers name and/or address

 

no bloody wonder the OC' s are getting away with providing generic T & C's

 

what a useless bunch of winkers the OFT are

 

DD, You might want to have a look at posts 35 and 37 in the following link. Susan Edwards, Head of Credit Investigations and Enforcement, Office of Fair Trading has something different to say.. and all of it in the consumers favour methinks.

 

The OP put the pages up out of order and page 1 is in post 37. But read and enjoy.

[diddydicky]

DD, You might want to have a look at posts 35 and 37 in the following link. Susan Edwards, Head of Credit Investigations and Enforcement, Office of Fair Trading has something different to say.. and all of it in the consumers favour methinks.

 

The OP put the pages up out of order and page 1 is in post 37. But read and enjoy.

 

alright i give up, where is it??

[citizenB]

DD, You might want to have a look at posts 35 and 37 in the following link. Susan Edwards, Head of Credit Investigations and Enforcement, Office of Fair Trading has something different to say.. and all of it in the consumers favour methinks.

 

The OP put the pages up out of order and page 1 is in post 37. But read and enjoy.

 

alright i give up, where is it??

 

you really must learn to read my mind :lol:

 

Sorry, here is the link as promised

http://www.consumeractiongroup.co.uk/forum/legal-issues/196114-miss-muppet-mbna-costs-4.html#post2226238

[diddydicky]

you really must learn to read my mind :lol:

 

Sorry, here is the link as promised

http://www.consumeractiongroup.co.uk/forum/legal-issues/196114-miss-muppet-mbna-costs-4.html#post2226238

 

i thank you!!

[diddydicky]

you really must learn to read my mind :lol:

 

Sorry, here is the link as promised

http://www.consumeractiongroup.co.uk/forum/legal-issues/196114-miss-muppet-mbna-costs-4.html#post2226238

 

well that fly's in the face of their own published advice doesn't it!!

 

ill keep that for reference

 

many thanks

[beachcomber60]

Grrrrrrrrrr ! ! !

 

CapQ have now replied 'acccount on hold until **July '09 whilst we investigate.

 

How many times do they have to investigate the same account before they send it back to capone!

 

Beachy

[sunflower99]

Hi Beachy

Looks like capquest geting quite attached to you! Still suely they must realise you twigged they not got a enforceable agreement by now and hopefully the investigation will result in you being passed back to crap one!

[beachcomber60]

Hi Beachy

Looks like capquest geting quite attached to you! Still suely they must realise you twigged they not got a enforceable agreement by now and hopefully the investigation will result in you being passed back to crap one!

 

Thanks Sunflower, yes hopefully they'll get the message this time - if they dont (as I've disputed the 'alledged balance' it'll be OFT & TS.

 

Where you been anyway - not seen you around the capone threads or the fan club ?

[sunflower99]

Thanks Sunflower, yes hopefully they'll get the message this time - if they dont (as I've disputed the 'alledged balance' it'll be OFT & TS.

 

Where you been anyway - not seen you around the capone threads or the fan club ?

Hi Beachy

Been busy behind the scenes getting advice about other DCA problems!Not had a very good weekend! Our tv blew up:eek: so its a bit like victorian times in our house at moment.LOL ! next thing is we will be singing round a camp fire for entertainment! Going to attempt to watch a film on our very small computer screen !but not quite the same as a tv! I have got a two week break to potter round ! but not a very good start to it having our TV blow up:eek: Glad you seeing capquest off! and still givng them a hard time,I expect once they passed you around to a couple of DCAS things will go quiet again!

Edited July 4, 2009 by sunflower99

[beachcomber60]

*** HELP ***

 

Although I have disputed the account based on charges, I have received(yet again) a reply from capquest stating that they have been instructed by capone to carry on with collection activities, capone will deal with the dispute (they have only offered a £12 refund ), surely capquest arent allowed to pursue a disputed account.

 

Capq are only collecting on behalf of capone - the account has not been assigned.

 

Currently dealing with three bereavements within eight days and can well do without these leeces at the moment.

 

Any advice would be most welcome.