Letter from DCA post Manchester case (they specifically mention it) Need some help with writing a response.

[Leightonx1]

Dear All,

 

I could really use some help...

 

This debt relates to a Halifax Credit Card from 2003, it's been sold to CapQuest in April 2009, the documents they have sent I believe to be unenforecable (confirmed many times on here). They have just sent me a recent letter that refers to the Manchester case and I have no idea how to repond to it.

 

 

I've attached the most recent letters sent to and from CapQuest, they are in reference to what I believe is an unenforceable set of documents (also uploaded) they have sent me these same documents countless times. They seem to pick and choose which letters they respond to, and have completely confused and messed up all the dates of the letters I have sent and the content of my letters. I never mentioned the Manchester case but they have used this as the base of there latest response.

 

Could really use some advice and help on how to respond to the last letter from them at the end of my uploaded file, or any advice in general.

 

I've uploaded the most recent correspondence in chronological order as one PDF file to make it easier, and added thee CCA sent and seperate terms they have sent also.

 

 

I do have many more letters dating back to April last year, all my letters were sent recorded and I've kept copies and proof of postage.

 

 

Thank you, any help is much appreciated

Edited February 6, 2010 by Leightonx1
Removed attachments.

[diddydicky]

he terms document is a copy of the agreement that is usually posted out to a customer within the cancellation period and is NOT what was attached to the application form

 

can you tell us before we suggest a response, anything about a DN- did you get one can you post it up

 

did you subsequently receive a termination letter or demand for payment if full?

 

also, is the application form/agreement as illegible as it appears in the post?

[lickthewallfatboy]

you mention a debt from 2003

 

When was the last time you made a payment or acknowledged it in writing?

[lilly white]

just one question

 

did you sign the agreedment

 

did you sign the application

[PGH7447]

OK I see you had credit card cover, was this pertenant, if not then claim the cover back.

 

are there any charges you can claim back

 

I would consider the agreement to be an application form, but could be construed as valid, best bet is to see what you can reduce the amount by in relation to charges and PPI, or as LTWFB says when did you last make a payment on it

[Leightonx1]

Hi diddydicky, Thank you for your response;

In terms of a DN I don't have a copy of one, though Halifax may well have sent one as far back as 2005/2006, the account first ran into trouble when I disputed charges, I believe they may have defaulted it then as I refused to pay (the charges they had added exceeded the amount owed). I have a letter from CapQuest notifying me that they had bought the account; I'll upload this for you now.

Had many demands for full payment from CapQuest since April 2009 when they bought it.

That is the CCA they gave me, it looked as though they had ran it through a photocopier a few hundred times, it's the best they have given me.

The last time the debt was paid was in 2006, it was unwittingly paid twice by one of those companies that help you reach agreements on your debts. Apart from this account all my others are paid off, this one accounts almost exclusively of charges and PPI insurance.

[diddydicky]

Hi diddydicky, Thank you for your response;

In terms of a DN I don't have a copy of one, though Halifax may well have sent one as far back as 2005/2006, the account first ran into trouble when I disputed charges, I believe they may have defaulted it then as I refused to pay (the charges they had added exceeded the amount owed). I have a letter from CapQuest notifying me that they had bought the account; I'll upload this for you now.

Had many demands for full payment from CapQuest since April 2009 when they bought it.

That is the CCA they gave me, it looked as though they had ran it through a photocopier a few hundred times, it's the best they have given me.

The last time the debt was paid was in 2006, it was unwittingly paid twice by one of those companies that help you reach agreements on your debts. Apart from this account all my others are paid off, this one accounts almost exclusively of charges and PPI insurance.

 

did you have a letter from the OC telling you it had been sold?

 

have you done a SAR on the OC - if not do one now

 

its getting better (for you) all the time

[diddydicky]

copies of documents sent to you have to be "easily legible"

 

not "legible", "just about legible" or its "ok with a magnifying glass"

 

failing which this in itself and irrespective of the contents of the document is a failure to comply with s78

[Leightonx1]

Hello Everyone, thank you very much for your kind responses.

 

Hi lilly white, well that document they sent me as a CCA has my signature on it (or what used to be my signature).

 

Hi PGH7447, The charges I refer to were added by Halifax over the course of the account since 2003, but the majority of charges were added after I stopped acknowledging the debt due to disputing the charges in 2006. PPI was added on for months after that as was interest. In some months after the account fell into default they added up to three charges a month which is why what they say I owe now is built up almost exclusively of charges, interest and PPI, so far as I know CapQuest hasn't tried to add to this as yet.

 

The last payment was made in 2006, but not by me, it was by a free consolidation service, they made two payments before I realised and asked them to cease. The last payment I made myself was in 2005, but I doubt this matters, so far as the law is concerned I guess my last acknowledgement was in 2006 as CapQuest state in there most recent letter.

 

Hi diddydicky, you'll find the letter CapQuest sent me telling me they had bought the debt attached here.

 

I did receive a letter from Halifax telling me they had sold it yes, but I thought at the time it looked a bit fishy, it resembled a home printed document. But I called Halifax and they confirmed it to be sold.

 

Basically what I've done since March 2009 since receiving the letter of assignment was fire off letters requesting to see a copy of the CCA, they first provided the one I've uploaded in around August 2009. I immediately fired off other letters regarding prescribed terms being missing. In response they sent me the 'terms' documents I've uploaded and three photocopies of the CCA (I know not why they sent three of the same in one letter) and a set of statements. In each response over the last three months they have sent me more copies of the same three sets of documents each time. I sent another letter in Novemeber 2009 basically saying the CCA, the 'terms' and the 'statements' did not constitute an enforceable agreement. They agreed with me in part that the CCA (or application form as I call it) was unenforceable and then said they were dealing with my complaint, they subsequently never gave me a final response to this complaint and today I received the most up to date letter quoting the Manchester case. I know for sure the debt HAS been bought by CapQuest as I get monthly records of my credit files from all three agencies and the debt was 'settled' in these records with Halifax and re-logged with CapQuest.

 

Pardon my ignorance if I'm wrong diddydicky, but if I know for sure the debt has been bought, is there any reason for me to do a subject access request? Is this what i should send in response to this letter and should I be at all worries about this last letter?

 

Just in case it's relevant, I've never spoken to them on the phone. In March 2009 they did try calling me (allot) but I changed my number and have since communicated through writing. I have a record of every letter to and from and contrary to what CapQuest say all my letters are dated and have proof of postage as every one has always been sent recorded (some letters sent to numerous departments too).

Edited February 6, 2010 by Leightonx1
Removed Attachment

[lilly white]

ok you signed the application form

 

however the agreedment that they sent for you to keep you did not, is that correct

[Leightonx1]

Yeah, there is no signature on either sets of the 'terms' they just printed my name on the top of both of them. It is possible that they may have sent these after the account was opened through the post, but I don't recall ever seeing them until CapQuest sent them. The only document to bare my signature is the 'application form'

[make them aktiv runners]

Deed of Assignment is between Halifax PLC & Capquest Investments Ltd. Capquest Debt Recovery are a third party not part of the deed of assignment. I would have thought one of the parties to the assignment had to give notice of assignment. There is nothing wrong with Capquest Investments Ltd appointing Capquest Debt Recovery with a separate NOA.

[Leightonx1]

I've read allot about CapQuest and many threads on here in the past, I think it's the norm that Capquest Investments Ltd initially buys the debt and then uses the child company CapQuest Debt Recovery to chase payment. I wouldn't be surprised that if one were to pay that a few internal transfers are made to avoid paying tax on it!

[lilly white]

Yeah, there is no signature on either sets of the 'terms' they just printed my name on the top of both of them. It is possible that they may have sent these after the account was opened through the post, but I don't recall ever seeing them until CapQuest sent them. The only document to bare my signature is the 'application form'

 

 

ok cool

 

in the round is very clear that all they have with sig on is the application it is good for toilet paper.

 

i see it says as per attached conditions so not the same doc, game on.

 

So send this as refer to carey and others v banks

 

o are you there Barry

 

 

THE STATUTORY PROVISIONS The nature of the agreements

1. It is common ground that the (typical) credit card agreements which are the subject of the preliminary issues constitute "regulated agreements" for "running account credit" falling within ss8 and 10 (1) (a) of the Act. They also constitute "credit token agreements" under sl4 by reason of the provision of the credit cards themselves.
   
   Executed and unexecuted agreements

   
   

2. "Executed agreement" is defined under si 89 (1) as being "a document, signed by or on behalf of the parties, embodying the terms of a regulated agreement, or such of them as have been reduced to writing." An "unexecuted agreement" is defined as "a document embodying the terms of a prospective regulated agreement, or such of them as it is intended to reduce to writing." By si 89(4) "A document embodies a provision if the provision is set out either in the document itself or in another document referred to in it."
   
   Part V of the Act

   
   

3. This Part is entitled "Entry into Credit or Hire Agreements" and then a section within that, immediately before s60, is entitled "Making the agreement". This is concerned, among other things, with the duties of the creditor when the agreement is first made.
   
   Proper execution of the agreement

   
   

4. In particular while the parties may succeed in making an executed agreement (see above), if it fails to conform to requirements made by regulations as to form and content it will be an improperly executed agreement ("IEA").
   
5. Specifically, s61 (1) provides as follows:
   
   s61 (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."

   
   

6. Section 189 (1) defines "prescribed" as "prescribed by regulations made by the Secretary of State". The relevant power here is contained in s60:
   
   s60
   (1) "The Secretary of State shall make regulations as to the form and content of documents embodying regulated agreements, and the regulations shall contain such provisions as appear to him appropriate with a view to ensuring that the debtor or hirer is made aware of -
   (a) the rights and duties conferred or imposed on him by the agreement,
   (b) the amount and rate of the total charge for credit (in the case of a consumer credit agreement),
   © the protection and remedies available to him under this Act, and
   (d) any other matters which, in the opinion of the Secretary of State, it is desirable for him to know about in connection with the agreement.
   (2) Regulations under subsection (1) may in particular -
   (a) require specified information to be included in the prescribed manner in documents, and other specified material to be excluded;
   (b) contain requirements to ensure that specified information is clearly brought to the attention of the debtor or hirer, and that one part of a document is not given insufficient or excessive prominence compared with another...."
   The Consumer Credit (Agreements) Regulations 1983 ("the Agreements Regulations")

   
   

7. These were made by the Secretary of State pursuant to s60.
   
8. By Regulation 2 (1) and Schedule 1, the credit card agreements with which I am concerned had to contain certain information. This included the following:
   
   (1) By paragraph 2 of Schedule 1,
   "The name, postal address and, where appropriate, any other address of the debtor".
   Prior to 31 December 2004 Schedule 1 paragraph 2 of the Agreements Regulations required that 'All Types' of regulated agreement provide
   "The name and a postal address of the debtor".
   The present reference to "other address" is intended to cover electronic addresses such as e-mail addresses;
   (2) By paragraph 8 of Schedule 1, the credit limit which could be expressed in different ways, including "a statement indicating the manner in which the credit limit will be determined by the creditor and that notice of it will be given by the creditor to the debtor..";
   (3) By paragraph 10 of Schedule 1, the rate of interest and the total amount of other charges included in the total charge for credit;
   (4) By paragraph 15 of Schedule 1, the APR.

   
   

9. By Regulation 2 (3) and Schedule 2, a description of the protection and remedies available to the debtor. By paragraph 3, where the agreement was cancellable, this would include the following: "Your right to cancel. Once you have signed this agreement, you will for a short time have a right to cancel it."
   
10. Then, by Regulation 6 and Schedule 6 the following terms had to be contained in a regulated agreement for running account credit if it was not to be an IEA, and were prescribed for the purposes of s61 (1) (a):
    
    "A term stating the credit limit or the manner in which it will be determined or that there is no credit limit" (paragraph 3 of Schedule 6);
    "A term stating the rate of any interest on the credit to be provided under the agreement" (paragraph 4 of Schedule 6);
    "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:
    number of repayments;
    amount of repayments;
    frequency and timing of repayments;
    dates of repayments;
    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." (paragraph 5 of Schedule 6).
    I shall refer to these as "the Prescribed Terms".

    
    

11. Accordingly, the document which is signed by the parties (and which forms all or part of the executed agreement) must itself contain the Prescribed Terms and the name and address of the debtor. Other terms may be incorporated by reference but not the Prescribed Terms.
    
    Copies of the agreement at the time when it is made

    
    

12. The initial duty is to provide a copy of the unexecuted agreement, as set out in s62 as follows:
    
    "s62
    (1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, but on the occasion when he signs it the document does not become an executed agreement, a copy of it, and of any other document referred to in it, must be there and then delivered to him.
    (2) If the unexecuted agreement is sent to the debtor or hirer for his signature, a copy of it, and of any other document referred to in it, must be sent to him at the same time.
    (3) A regulated agreement is not properly executed if the requirements of this section are not observed."

    
    

13. A further duty imposed upon the creditor by s63 is to supply copies of the executed agreement as follows:
    
    "s63
    (1) If the unexecuted agreement is presented personally to the debtor or hirer for his signature, and on the occasion when he signs it the document becomes an executed agreement, a copy of the executed agreement, and of any other document referred to in it, must be there and then delivered to him.
    (2) A copy of the executed agreement, and of any other document referred to in it, must be given to the debtor or hirer within the seven days following the making of the agreement unless -
    (a) subsection (1) applies, or
    (b) the unexecuted agreement was sent to the debtor or hirer for his signature and, on the occasion of his signing it, the document became an executed agreement.
    (3) In the case of a cancellable agreement, a copy under subsection (2) must be sent by an appropriate method.
    (4) In the case of a credit-token agreement, a copy under subsection (2) need not be given within the seven days following the making of the agreement if it is given before or at the time when the credit-token is given to the debtor.
    (5) A regulated agreement is not properly executed if the requirements of this section are not observed."
    Enforcement of IEAs

    
    

14. The basic rule is stated by s65:
    
    "s65
    (1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.
    (2) A retaking of goods or land to which a regulated agreement relates is an enforcement of the agreement."

    
    

15. Then sl27(l) provides as follows where an application to enforce is made by the creditor:
    
    "..the court shall dismiss the application if, but only if, it considers it just to do so having regard to:
    (i) prejudice caused to any person by the contravention in question, and the degree of culpability for it; and
    (ii) the powers conferred upon it by sub-section 2 and sections 135 and 136 [power to reduce or discharge the sums owed to compensate for prejudice caused, to suspend or place conditions on enforcement or amend an agreement or security].."

    
    

16. Then, sl27(3) provides, in relation to agreements made before 6 April 2007, as follows:
    
    "The Court shall not make an enforcement order under s 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 s60(l)) itself containing all the prescribed terms of the agreement was signed by the debtor ..(whether or not in the prescribed manner)."

    
    

17. Accordingly, non-compliance with the relevant regulations is capable of being cured upon application by the court unless the document signed by the debtor did not contain the Prescribed Terms. In such a case the non-compliance cannot be cured and, in the words of Lord Hoffman in Dimond v Lovell [2002] 1 AC 384 at p397F, the agreement is "irredeemably unenforceable".
    

[lilly white]

Also sue them for the PPI

[angry cat]

Strikes me that they should have provided the payment protection cover policy + terms & conditions;

there is a summary on the attached: Terms 1 pdf.

However, this is only a summary.

 

Not sure, if you have issues re: the PPI?

[Leightonx1]

Wow!

 

lilly white thank you so much for all that, it certainly looks substantial. How would I go about formulating that into a letter, simply start as per usual, correct them on the falsified information and data, then in response cut and paste this?

[lilly white]

JUST REFER TO THE COURT CASE THEY WANT TO PLAY SO LETS PLAY

 

ALSO COPY AND PASTE THE CASE NOTES FOR THEIR REFS JUST IN CASE THEY DID NOT READ ALL OF IT.

 

sleep well

[angry cat]

Very good lilly white:)

 

I was simply attempting to deal with s78 compliance!

[lilly white]

Very good lilly white:)

 

I was simply attempting to deal with s78 compliance!

 

Ac are you well

 

the best regards lilly

[Leightonx1]

Sent a version of the letter reconmended by Lily white

Edited February 1, 2010 by Leightonx1

[diddydicky]

Take the emotion out of the letter,

 

change this:-

 

Thank you for your letter dated 26th January 2010. First of all I must address and strongly advise you that your claim that you received an ‘undated letter’ is complete and utter nonsense. At no point in my dealings with you has such letter been dispatched. You also seem to have some kind of issues Ms Slater with accuracy of dates. If you require any assistance on keeping and utilizing accurate records in relation to our correspondence, I will be only too happy to post you a chronological history.

to this:-

 

The undated letter to which you refer was indeed dated.

[diddydicky]

and this:-

 

However, if you feel what you have provided thus far give you grounds to continue to waste my time and persue this debt, then by all means, take me to court!

 

to this:-

 

It is my opinion that you do not have a cause of action, no doubt if you feel that you do, i will receive service in due course

[Leightonx1]

Thanks diddydicky, I'll make the changes suggested. really appreciate all your help

[volvo]

subbing