Tony3x - v - Cap One

[tony3x]

Sent a CCA request back in August. Got the usual T&C in September. Sent the following letter on 14/11, received by them on 16/11. Have not yet received a reply - What next?

 

ACCOUNT IN DISPUTE

Ref:

 

Dear Sir/Madam

 

Thank you for your letter of 3rd September 2009, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On the 25th August 2009 I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. You have failed to comply with my request, and as such the account entered default on 8th September 2009.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore, you are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before Capital One enters into a default situation.

 

This limit has expired.

 

As you are no doubt aware section 78(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

Therefore this account has become unenforceable at law.

 

As you have failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, failed to send a full statement of the account and failed to provide any of the documentation requested. You will also be aware of the CPUTR 2008 and the OFT's guidelines on debt collection which state under the title Deceptive and/or unfair methods - Examples of unfair practices are as follows - 2.8

 

(i) - 'Failing to investigate and/or provide details as appropriate, when a debt is queried or disputed, possibly resulting in debtors being wrongly pursued'

 

(k) - 'Not ceasing collection activity whilst investigating a reasonable queried or disputed debt'

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

[silverfox1961]

They will write back saying they have complied but of course they haven't so then begins the letter ping pong if you want it.

 

I did see somewhere that a creditor is not allowed to say they have sent you an agreement when they plainly haven't.

 

Expect them to hassle you for payment (if you have stopped) or for them to pass it on to one of the "oh so friendly" DCA's.

 

I would report them to Trading Standards and the OFT for now.

[tony3x]

They have now replied with the following:

 

I am not sure it is enforceable as there is a 'short application form' and a separate printed 'credit agreement'

[tony3x]

as per the above post but these images may be better quality.

[silverfox1961]

Hiya,

Don't know how I missed this way back when!

 

Anyhoo, the Attached CCA is too small to read. can you repost it as a pdf then I can enlarge it a little

[tony3x]

here is another go!

 

[silverfox1961]

Well, in my very humble opinion, that "agreement" is a pile of poo

 

NO APR

NO credit limit

NO repayment terms

 

The only legal term on that APPLICATION form is the right to cancel

 

Of course Cap1 will state that the agreement is fully enforceable and continue chasing (as is their right) but I believe they will have trouble if they produced that in court.

[tony3x]

The annoying thing with them is that I have been making reduced payments with no problems. Now after nearly a year they say they want an income/expenditure form, which I do not complete means they will take further action. Hence they will not get any more payments and I will contest the enforceability of the CCA.

[tony3x]

Started to receive payment demands from Fredickerson so have written to them explaining that the account is in dispute as Cap One have failed to comply with my CCa request.

 

Fredickerson have written back, once to say that my address details have changed - to the same address that I have lived in for 14 years, and another to say that they have referred the matter back to Cap One.

 

The game continues!

[tony3x]

To update further. Not been on for some time but have recently obtained my credit report. Some interesting dates:

 

Default date on credit report is 04/09/09

 

No default letter ever recieved and I was in a payment plan with them at the time.

[silverfox1961]

No default letter ever recieved and I was in a payment plan with them at the time.

 

This has been reported quite a lot (including me) It doesn't matter that you were in a payment plan. The fact that you were paying less than what was required to satisfy them resulted in them defaulting you. This will stand as you will never be able to prove you didn't receive the DN and they don't have to prove they posted it, only that it was issued and I bet if you did a SAR to Cap1, it would show on your account history.

[tony3x]

May have to SAR them to see what they hold on file.

[tony3x]

An old thread resurrected. After not hearing fro Cap One since November 2010 when they wrote to say that Fredricksons are no longer dealing (this was my letter to them in July 2010), I have now received a letter from Cap One to say debt has now been sold to Lowells and subsequently a letter from Lowells asking me to contact them re payment etc.

 

Would I be right in saying that I should hold fire and wait and see what progresses?

[BRIGADIER2JCS]

An old thread resurrected. After not hearing fro Cap One since November 2010 when they wrote to say that Fredricksons are no longer dealing (this was my letter to them in July 2010), I have now received a letter from Cap One to say debt has now been sold to Lowells and subsequently a letter from Lowells asking me to contact them re payment etc.

 

Would I be right in saying that I should hold fire and wait and see what progresses?

 

 

When was the last payment or written acknowledgment of the debt made?

 

 

Send Lowell a CCA request now.

 

 

Care is needed with Lowell as if the debt is over £750 they a prone to sending statutory demands for payment.

[MUTT1]

tony3x

 

I, (and like a lot of others) find myself in the same situation. Could you tell me when the account was opened and could you confirm that the T/C's that you received were version 5?

 

Mutt1

[tony3x]

Account was opened in June 2000.

 

Last payment showing on credit report in Sept 2009 with the DF date as 04/09/2009, however my own records show that I made the last payment in Feb 2010. I requested a copy of my CCA on 25/08/2009 to which they replied on 03/09/2009 enclosing a reconstituted agreement and no statement of account or T&C's. I subsequently wrote again on 14th Nov asking for a copy of the signed agreement. The short application form in post 4 (will re scan so it can be seen) was supplied with a letter dated 09/12/2009 along with V5 of the T&c's. I have also bee supplied with V14 of the T&C's.

 

Can you also please confirm what a statutory demand for payment is.

 

Also is it worth sending a CCA request to Lowell if I already have a copy from Cap One.

 

thanks

[MUTT1]

tony3x

 

Thanks for the info, could you tell me when you received V14 of the TC's I am trying to establish what period V10 would relate to ? A Stat Demand is just that, and needs to be dealt with in a precise and swift manner should you get one.

 

I would hang fire about contacting Lowell's until you get a second letter then you should CCA Request them regardless of having received one from Cap 1. Just see what Lowell's provide and how it compares with what you already have.

 

Do not mention or give any reference to having received a NoA from Lowell's or Cap 1. I would advise that the account was in dispute with Cap 1 and as far as you are concerned remains as such and, perhaps ask what gives Lowell the legal right in asking you for payment of a debt that you do not acknowledge.

 

There are plenty of us in the same boat and my intention is to avoid any contact until at least letter number two or three. The first letter as far as I am concerned does not exist. Perhaps you might want to consider this.

 

MUTT1

[tony3x]

Thanks Mutt1,

The V14 T&C's came in a letter dated April 2010.

 

I wonder if an FOI request for dates and versions of T&C's could be made.

[MUTT1]

Hi tony3x,

 

Thanks for the info, FOI to Lowell's or Cap 1 would not apply. I have my own ideas and will pursue this at a later date after I have received further letters from Lowell's.

 

Keep your eye on the ball just in case you do get a Stat Demand which, as I have said, would need to be dealt with and ultimately be set aside. Whatever you do make sure that you do not acknowledge any alleged debt to Lowell or Cap 1.

 

MUTT1

[BRIGADIER2JCS]

Account was opened in June 2000.

 

Last payment showing on credit report in Sept 2009 with the DF date as 04/09/2009, however my own records show that I made the last payment in Feb 2010. I requested a copy of my CCA on 25/08/2009 to which they replied on 03/09/2009 enclosing a reconstituted agreement and no statement of account or T&C's. I subsequently wrote again on 14th Nov asking for a copy of the signed agreement. The short application form in post 4 (will re scan so it can be seen) was supplied with a letter dated 09/12/2009 along with V5 of the T&c's. I have also bee supplied with V14 of the T&C's.

 

Can you also please confirm what a statutory demand for payment is.

 

Also is it worth sending a CCA request to Lowell if I already have a copy from Cap One.

 

thanks

 

Yes often different documents turn up so send the CCA request.

 

 

A statutory demand for payment is the first step in the bankruptcy process, Lowell have been known to use this as a "debt collection tool" on debts above the £750.00 threshold.

 

 

 

 

This "recon agreement " seems a little suspect to me if you can post it here suitably redacted it would be a great help.

[tony3x]

I will get the CCA request done.

 

Here is a copy of the one that I have been sent already.

 

[BRIGADIER2JCS]

I will get the CCA request done.

 

Here is a copy of the one that I have been sent already.

 

 

 

Clearly a "short application form" cannot contain all the terms and conditions relating to the account.

 

 

Were there separate Ts & Cs supplied?

[MUTT1]

tony3x

 

Hang fire on the CCA request until you receive a second letter from Lowell's then make your request without making any reference to the letter you have already received. There is a valid reason for doing this.

 

MUTT1

[BRIGADIER2JCS]

tony3x

 

Hang fire on the CCA request until you receive a second letter from Lowell's then make your request without making any reference to the letter you have already received. There is a valid reason for doing this.

 

MUTT1

 

 

Explanation please?

[MUTT1]

No problem, acknowledgement or not you work it out. I will give you a tip LoPA.