Lowell/BW claimform - Old CAp1 'debt'***Settled Tomlin Order***

[Jameson78]

I sent Capital 1 the following reply when they first told me that they require my signature:

Thank you for your letter dated _______2009 in which you say that you will not comply with my request dated __________2009 under s.78(1) of the `Consumer Credit Act 1974 unless I provide you with a signature.

 

There is no requirement under the Act that require a s.78(1) request to be accompanied by a signature, and I am unable to accede to your request.

 

Further, I note that you have sent statements and correspondence containing sensitive private information to me at same address as that detailed in my s.78(1) request. If you are concerned that you are corresponding with the correct person I wonder why you have not verified the information before.

 

As you are aware, disclosing data without adequate checks of identity is contrary to the 7th principal of data protection, listed in schedule 1 of the Data protection Act 1998. The time to confirm my identity was before you sent your first threat letter.

 

Please now comply with your legal obligation without further delay and formally acknowledge my letter dated __________2009, which was a Formal Complaint under the Consumer Credit Act 2006 Complaints Procedure and which you received at your office on __________2009.

 

Capital just replied with this:

 

Dear Mr. Jameson,

 

Whilst I appreciate your statement that under the Consumer Credit Act 1974, you are not required to produce a copy of your signature upon making a request under Section 78, Capital One also has a commitment to protecting your personal information.

 

Therefore, we ask that our customers provide signed letters to satisfy us as to their identity, we do not feel that this is an unreasonable request as it is designed to protect you and not in order to delay providing any information you request.

 

As I have already explained, we require a copy of a document showing your current signature (this could be a drivers licence or passport) before we can proceed with your request.

 

I trust this explains why I continue to request proof of your new signature. Please arrange for this documentation to be forwarded to us and we will be happy to assist.

 

If you need any further assistance, please contact me again.

Clearly Capital 1 are playing games and can't wait to get a copy of my signature! HAHA! Apart from reminding them that they are in default of my CC request and until such time they comply they can not enforce this agreement against me, anything else anyone recommends I should use? Doesn't Capital 1 have to acknowledge my compliant in accordance with the Banking Code as I stated clearly at the top of my letter Account In Dispute and that this is a:

FORMAL COMPLAINT UNDER THE CONSUMER CREDIT ACT 2006 COMPLAINTS PROCEDURE

 

Your comments and help to rebut this are appreciated. Thanks,

 

Jameson

 

[caledfwlch]

I was considering this recently.

 

My thoughts were, the advice is often to either present your signature in such a way on letters etc as to make it noticable if "photoshopped" or to use a markedly and provably different signature to your usual.

 

What would the legal position be if one was to scan your passport or driving licence, and via graphics software, carefully remove your signature and place in a different one, then print off and photocopy for added "roughness"

 

If there is nothing wrong with doing that it might be an amusing test. I should think if any DCA was indeed to try and "copy" a signature presented in such a way, then it would be extremely easy to prove they had done so, by way of having your original passport or driving licence.

[PGH7447]

either send a doctored signature or write back and state that they have happily in the past sent statements etc to you without any proof so tough the request still stands and the deadline will pass on date, or if it has pssed then just send the account in dispute letter

[Jameson78]

I wouldn't be surprised if there is a law which prohibits anyone tampering with passports in anyway.

 

either send a doctored signature or write back and state that they have happily in the past sent statements etc to you without any proof so tough the request still stands and the deadline will pass on date, or if it has pssed then just send the account in dispute letter

 

 

This is their second reply. I had already replied to their first response with:

Further, I note that you have sent statements and correspondence containing sensitive private information to me at same address as that detailed in my s.78(1) request. If you are concerned that you are corresponding with the correct person I wonder why you have not verified the information before.

[PGH7447]

send the account in dispute letter then

[wendella]

I've had a CCA and a SAR come winging back for the same reason, just putting together a letter for the SAR now.

They know why we're not signing and yet they still insist on asking for ID. As if we're going to hand over passports or driving licences!

 

D'oh

[Huff&Puff]

Dear Idiots,

 

Whether you accede to my lawful request for a CCA agreement, or prefer to try and play silly mind games, makes no difference to the end result. Either way, it has now gone into formal dispute, and will remain so as long as you refuse to supply the documents.

 

Lots of love,

 

J

[Jameson78]

Is FPC the in-house collection for Capital one?

 

No letter of assignment recieved from Cap1 but instead introductory threatogram received from FPC

 

Anyone shed some light on FPC please?

[silverfox1961]

Hi,

After a little searching, it seems FPC are part of Fredericksons. NOT the in house muppets for Cap1.

Does the threat-o-gram say they are collecting on behalf of their client. If so, they are collecting for Cap1 and they haven't bought it

[twofoot]

Credit Management & Debt Collection Business Industry News

[Jameson78]

Hi,

After a little searching, it seems FPC are part of Fredericksons. NOT the in house muppets for Cap1.

Does the threat-o-gram say they are collecting on behalf of their client. If so, they are collecting for Cap1 and they haven't bought it

 

Silverfox

FPC say it has been refered to them for collection...

Cheers

 

Credit Management & Debt Collection Business Industry News

 

 

"Fredrickson International which is widely acknowledged to be the most sophisticated in the industry"

 

Well well well... I'm flattered!

[ScarletPimpernel]

"Fredrickson International which is widely acknowledged to be the most sophisticated in the industry"

 

The bar is set extremely low, clearly.

[silverfox1961]

Silverfox

FPC say it has been refered to them for collection...

Cheers

 

I would say they are collecting on behalf of Crap1 so no Notice of Assignment is needed. (I believe)

Have you asked Cap1 for the agreement?

Have you been defaulted?

Is the account still live?

[Jameson78]

I would say they are collecting on behalf of Crap1 so no Notice of Assignment is needed. (I believe)

Have you asked Cap1 for the agreement?

Have you been defaulted?

Is the account still live?

 

Crap1 defualted me and officially closed the account - letter last week.

 

Credit agreement is unenforacble - received an unsigned copy of agreement.

[ScarletPimpernel]

I would say they are collecting on behalf of Crap1 so no Notice of Assignment is needed. (I believe)

 

Correct - an assignment only takes place when a debt is sold.

[silverfox1961]

Correct - an assignment only takes place when a debt is sold.

Thanks for the confirmation.

 

On to Cap1. Did you put the account into dispute?Cap1 will say there is no dispute as they could send the agreement they did by virtue of this

 

http://www.johnpughschambers.co.uk/Consumer_Credit_%28Cancellation...cuments%29_Regulations_1983.pdf:

 

If they had a signed copy, why not send it?

 

I would still send this letter to FPC:

 

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

 

Did the default notice give you a date to rectify the default or is it one of Cap1's usual 28 day letters.

[Jameson78]

Letter sent last month:

 

 

Thank you for your letter dated ____________ 2009

Whether you accede to my request or not makes no difference. I will not be providing you with a copy of my signature.

As you must realise this agreement does not conform to section 61(1) of the Consumer Credit Act 1974 and would therefore only be enforceable by order of the Court under section 65 of the Act.

However, the absence of certain prescribed terms, such as my signature, means that a court would be prevented from enforcing it under section 127(3) of the Act.

So there can also be no confusion in the future, I believe, based on the evidence before me, at most, there would appear to be improperly executed agreement in existence.

You should also be aware that because the agreement you have disclosed thus far is improperly executed, I reserve the right to seek a declaration from the Court that (i) you shall be precluded from taking any further steps to enforce the Agreement; and (ii) the Honourable Court shall not entertain any application by you in the future for an enforcement order in relation to the Agreement. I will bring such action under section 142 of the Act.

If you fail to respond to this letter, or in the alternative fail to provide a copy of a properly executed agreement and instead provide such a document at a later date, once court proceedings have commenced, then I reserve my right to bring the contents of this letter to the attention of the Court when considering the issue of costs.

Yours sincerely,

[Jameson78]

 

Did the default notice give you a date to rectify the default or is it one of Cap1's usual 28 day letters.

 

It looks like one of Cap1's usual 28 day letters. Here it is in two links will show front and back of DN:

 

http://s896.photobucket.com/albums/ac162/jameson78/?action=view&current=CCA_ CAP_DEFAULT1.jpg

 

http://s896.photobucket.com/albums/ac162/jameson78/?action=view&current=CCA_ CAP_DEFAULTBACK.jpg

 

It has my name and address which i have blanked out.

 

What are the known issues with Cap1's 28 day letters mentioned? I am trying to work out my angles - It's driving me crazy.

[silverfox1961]

Got your PM

 

With a default Notice, they are supposed to give a date for when to rectify the default, not, as in this case, 28 days. This date has to be at least 14 dats from receipt of the DN. Whilst an account hasn't been terminated, they could send out another DN to rectify their faulty one so you need to keep quiet.

 

Have a look at this:

 

http://www.oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft1002.pdf

 

Page 20 is relevant but it does no harm to read it all.

 

With your default notice, is the overdue amount just the arrears or is it the full balance?

[Jameson78]

Hi Silver,

Thanks for you help and the OFT link!

Am I right in thinking that what you are saying is there must be a clear date for action printed on the DN; irrespective of the fact Capital One are giving 28 days which is more than the statute required 14 day minimum?

So is not enough for the notice to say, “This payment must reach your Capital One account within 28 days of the date of this letter”?

The section in the Default Notice which states:

“IF THE ACTION REQUIRED BY THIS NOTICE IS TAKEN BEFORE THE DATE SHOWN NO FURTHER ACTION WILL BE TAKEN…”

So what you are saying is that there is NO DATE SHOWN so it is invalid?

Sorry to keep asking the questions, but you have no idea what this would mean to me if this notice is in fact invalid. I have since received a Termination Notice. Is this, in your opinion, unlawful rescission of contract and I can claim for damages as in Kpohraror v Woolwich Building Society?

P.S. The overdue amount appears to be just the arrears.

Thanks

[twofoot]

Without a clear date to rectify you have a invalid default notice. If your agreement is terminated in writing following that DN you are sitting pretty.

[Jameson78]

Thanks twofoot

[diddydicky]

Without a clear date to rectify you have a invalid default notice. If your agreement is terminated in writing following that DN you are sitting pretty.

 

 

I fully agree that a date has to be specified,

 

with 14 and 17 days there is a high probability that the DN would be deemed non compliant

 

However 21, and more so 28 days i feel would be a different matter and i could well see a judge allowing the DN to stand .

 

as for "sitting pretty" i would not personally feel confident at all in running this argument on its own to down the DN

 

I feel that the judge would take the view that if you are sane and savvy enough to contest this in court then you are certaoinly sane and savvy enough to figure out that 28 days gave you ample time to remedy the default

 

 

the other dn from amex is a bit difficult since they rather interestingly state 14 days from the date of service of the DN

 

apart from the 14 days being incorrect, unless they have a sworn statement from a process server or a signed for letter they could have some difficulty in showing when the DN was served

 

without proof of service i think a judge would rule that they are being extremely cavalier in their attitude

[Jameson78]

Thanks DD

[DoubleU]

Hi Jameson78

I've just been reading this thread and you said:

I reserve the right to seek a declaration from the Court that (i) you shall be precluded from taking any further steps to enforce the Agreement; and (ii) the Honourable Court shall not entertain any application by you in the future for an enforcement order in relation to the Agreement. I will bring such action under section 142 of the Act

 

I am in a similar situation. How do I obtain this declaration from the court??

Thanks in advance

DoubleU