Cap1/Carter claimform - old cap1 credit card debt

[plshelp!]

Hi,

Need help with this so called agreement,Bryan Carter issued proceedings back at the begining of April I immediately challenged requesting a copy of the CCA using template from the forums, I had initially sent the request back in June of last year, it was not received.

 

I have attached the response. I guess it has been forwarded to the court as well. What do I reply with ? I think this is a made up document it does not seem to fit together and clearly states its an application form. The statement at the bottom does not seem to set out any terms.

 

The covering letter states they expect payment within 10 days or persue through court again.

 

Any help much appreciated.

Cap1BC10001.pdf

[dx100uk]

so HAS this been to court already?

 

dx

[plshelp!]

Hi, no it has not been to court yet. I received original blue form on the 3rd April. I then returned to them the same day.

 

I received notification from court on the 7th, acknowledging a defence giving Bryan Carter 28 days to respond. I then received the application and the statements of the account on the 30th April, for some reason starting 3 months after the inception of the card. I only gave them 7 days to respond initially but I did not follow up asking court to stay for non compliance, I was being optomisitc thinking there would not be a response, mistake !

[dx100uk]

i'll get this thread moved to the legal forum

you'll get a bigger audience there with the correct knowledge

 

dx

[plshelp!]

Thanks dx

[DonkeyB]

This looks like an application for a second card on an existing account. Can you tell us more?

 

It's a pile of rubbish anyway.

[plshelp!]

I think part of it is an application for a second card. I had an original mastercard and then encouraged to take out a visa in 2002. I have binned the statements from that far back. I managed to find one but for the original card and a letter saying they have now stopped the PPI, something else to write about !

The application has two card numbers I blanked out, neither are relevant to me. It looks as if they may have made this document up!

 

Do I reply with something, like this:

 

Dear Sir or Madam,

Account no xxxxxxxxxxxxxxxx

 

ACCOUNT IN DISPUTE- Unlawful Rescission.

 

Re: my request under the Consumer Credit Act 1974

Further to my request under the above act, your attention is drawn to the fact that this account remains in serious dispute. On xxxxxx, by recorded delivery, I requested that you supply me a copy of the executed credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78, a copy of this request is enclosed. To date you have failed to comply fully with my request, as you are obliged to do under that section of the act. Without production of all of the required information I am unable to assess if I am indeed liable for any alleged debt to you, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974.

 

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which remains applicable following the recent judgement of HHJ Waksman in the case between Carey & HSBC. The act states…

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing ( 12 working days + 2 ) to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly as the full information required by the act has not been supplied on request, you have not complied with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in S.78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (3) Consumer Credit Act 1974 which states

 

127(3) The court shall not make an enforcement order under section 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 section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

 

This is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the consumer credit act 1974 the agreement cannot be enforced.

 

To clarify S.61(1) states

 

(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

 

In addition the prescribed terms referred to in section 60 CCA1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and 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—

 

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.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

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced..

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as you become compliant with my request. As you are still not in compliance with my request I insist that the following takes place with immediate effect.

 

All entries which refer to missed payments be removed from my credit file

All collection activities cease with immediate effect until you comply with my request from 27/03/09 or such time as a court makes an enforcement order.

In addition, I draw your attention to the Office of Fair Trading’s guidance on debt collection

 

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

 

What I Require.

 

I require that you send me a true signed copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well

 

No other correspondence will be accepted

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful

 

I trust this out lines the situation

 

This is from a post by vint1954 capital one and Laura cook, Thanks

 

 

I have sent sent an edited version of the letter above, thanks for the help, will post when I receive a response.

[citizenB]

Again, I am not sure what is happening here.

 

Can you pop up either a copy of the claim form, suitably edited to remove all personal information.

 

Have you received a copy of the default notice, if so, please post up a copy.

 

What was your defence ?

 

Did you request information by way of a CPR31.14 or CPR18 ?

 

Have a read of the two threads linked below. This will tell you how to go about obtaining information.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/255329-cpr-18-cpr-31-a.html

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/241827-legal-action-how-start.html

 

hth

[plshelp!]

sorry mistake in documents posted, will post again

 

Hi CitizenB,

 

Try again, the documents are attached. The reply to my defence is posted above. I am looking for the default but it was back in June last year I think.

 

Thanks.

BCCF0001.pdf

Edited May 11, 2010 by plshelp!
documents not edited properly

[citizenB]

plsehelp,

 

hmmm, what you should have done is just acknowledge the service only.

 

Then sent in your CPR31.14 request.

 

Point 1. The POC is pretty vague

Point 2. BC is asking for s69 interest which he isnt entitled to.

 

 

Quote

The Claimant fails to plead that this claim concerns an agreement regulated by the Consumer Credit Act, 1974. However, the Claimant claims interest pursuant to section 69 of the County Courts Act, 1984 which the Claimant should surely know they are not entitled to by virtue of the County Courts (Interest on Judgment Debts) Order, 1991 (SI 1991 No. 1184 (L. 12)) in particular section 2(3)(a), which clearly prohibits such an award:

 

· The general rule

 

2(3) Interest shall not be payable under this Order where the relevant judgment - (a) is given in proceedings to recover money due under an agreement regulated by the Consumer Credit Act 1974;

 

You say that no default notice has been received by you ? This should have been sent by Capital One.

 

Not sure what you need to do next, will go and have a look for you.

 

Have you looked at those two threads I linked you to ?

 

I am thinking that the 28 days for BC to respond as to whether they are going to continue has expired. You dont say what the date of issue on the claim form was.

 

Has BC responded to your CPR letter ?

 

Looks like you may need to get proactive and send a CPR31.15 request for inspection of the agreement.

 

Freethemice has made such a request in the following link

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2920911.html

You will find reference to CPR31.14 in the first post of one of the links I gave you earlier. But have linked you again to the particular post below.

http://www.consumeractiongroup.co.uk/forum/show-post/post-2695725.html

 

If BC dont allow you to inspect or provide copies in response to this. then you will need to make an order to the court for specific disclosure.

Is the amount being claimed above or below £5,000.00 ?

 

 

　

 

 

[plshelp!]

Lots of information to digest here, thanks Citizen B, will go through it this evening. I have found the default will post it later today.

 

Quick reply to some of the questions:

 

Under £5000.

 

No response to CPR letter yet.

 

Date of issue was 30/03/2010.

 

The copy application was sent outside the 7 days given.

 

Telephoned court they have not received the copy of application form above and unless they hear it will be stayed this week.

 

Default attached

C1default0001.pdf

[citizenB]

plsehelp, that is NOT a Default Notice. It is a statement of default, what it does prove is that the account has been terminated.

 

Now all we need is a copy of the default notice, proper.

 

I am not sure how you would ask for that as it isnt mentioned in the POCs.

 

IMHO, I would send a letter to Bryan Carter under CPR31.15 asking to inspect the original document as per the link I gave you in an earlier post.

[vint1954]

plshelp! said:

Default attached

Hi plshelp.

 

This notice is a termination of agreement. Importand if they have messed up your Default notice.

 

The letter that you are looking for will have as a header: Default Notice, issued under s87(1) CCA 1974.

 

That is the main document that we need to see.

 

Just to clarify the court process:

 

1. You receive the moneyclaim from Northampton BCC.

 

2. Within 5 + 14 days you must acknowledge the claim and generally state your intention to defend the claim in full.

 

3. Immediately, as you receive the claim, a CPR 31.14 request needs to be sent to the acting solicitors requiring copies of: The original signed agreement - ant terms and conditions from the inception of the account to now, including all terms and conditions when varried - any other documents referred to in the agreement. - The default notice. - The termination notice. - Any other document referred to in their POC. - Notice of assignment if the debt has been sold.

 

4. They have 7 days to respond to that notice. If they do not, a second letter reminding them of their duties needs to be sent, giving a further 5 days.

 

5. At this point it is also advisable to ask for sight of the original document under CPR 31.15, also within 5 days. The fact is that they should have these documents in their possesion before issueing a claim. If not it is akin to a fishing trip.

 

6. If they do not issue the documents within the required period, the next step should be an N244 application to the court, requesting the court to order sight of the documents, or strike the claim out. This will cost £75, which you can get back as costs if you succeed with the application, or it is free if you receive certain benefits.

 

You will also need to apply for extra time to file your defence, if they are messing you around.

 

Plshlp,

 

The letter above is realy only used earlier on in the process.

 

We need to see the actual Default notice. The date of issue and the rectification date are both important as to the legality of that document. Also the amount being advised in the DN to rectify the breach, wherther it is accurate or not and is for arrears only or the full ballance.

[plshelp!]

Hi All, things can only get better. I have now attached the proper default. I telephoned last week to be told the case had been stayed.

 

I then receive notification today the case has been transferred. With this an allocation questionnaire. I telephone local, they say dont understand as the stay was applied on the 10th but lifted on 14th. Contact Northampton, we recieved a request to continue from Capital One not sure when, as it is being transfered to local court. They have a four day back log of paper work, so it must have been recieved before the 11th.

 

I have another account been given to these people as well, totally ignoring all my letters to them, as usual, will post this information under another thread not at issue stage yet but threaten if i do not contact in 14 days will head to CCJ.

CAPdefault0001.pdf

[citizenB]

Ok, what number AQ is it.. should find number down at bottom left hand side of document and when do you have to get it back to your local court.

 

The Default notice gives sufficient time to pay as it states 28 days. vint will be able to say if there is anything else wrong with it. Would there have been any late payment charges/over limit charges in the amount they were asking you to pay.

 

I seem to recall you dont have a copy of the application form, so we cant tell if the clause they say you have broken is correct !

 

I wouldnt get muddled with introducing another account on this thread. But is that a Capital One account as well ?

[plshelp!]

Hi,

 

Its N149, return by 1st June and no, its Natwest and I am in the middle of creating thread called Gold Card Agreement Urgent Help ! under Natwest Bank.

 

Thanks

 

Received letter from BC saying account has been refered back to Capital One and is now on hold.

 

The court informed me if I return the form N149 and they dont it will be struck out. Would this be my best course of action ?

Edited May 18, 2010 by plshelp!

[DonkeyB]

Yup. Make sure you stick to the court deadlines - what Carter does is his concern.

[plshelp!]

I have now spoken to local court again and my defence has been incorrectly logged by Northampton and it will need to be heard by a district judge in local.

They have lost the paper file at the moment. Northampton say it was sent on 14th, local say not seen it ! local court say that Northampton have made mistakes with the case but because it has been received into court it will be heard.

 

They also say they are having problems contacting Northampton court to get any further information.

 

Is it me or does this seem absolutely ridiculous.

[citizenB]

 

Oh .. what on earth.. No, it isnt just you....

 

I sent a letter to Northampton just to keep them updated and they have logged it as my defence ??

 

What exactly do BC mean when they say they have returned the account to Capital One ? Are they no longer acting for them or what ??

 

If the case is already progressing how in heaven's name can it be on "hold" ?

[plshelp!]

They are going to put some extra time in on this tomorrow and locate the paper file, as nothing is electronic, although the local court has received the electronic file.

 

I will post tomorrow, if they call. I assume that BC have done what they say as I have that in writing but someone has lifted the stay and they dont seem to know why. They are assuming a letter was received but as the file cannot be located they cannot state for definate.

 

The court are pushing for it to be heard because it was received and admit there have been errors at Northampton but its only the judge that can decide the way forward. I will complete the N149 and hope that something goes my way !

 

The file has been located, its at local court but no letter. There is a piece of paper, not a letter head, just piece of A4, no signature or even a name. It just states the case reference and amount and requests it transferred to local court. Oh and the Cherry on the cake, its dated in April.

 

There was not a reason for the stay to be lifted or for the case to be transferred. The only thing local can do is ask a judge this afternoon what their impression of the case is, they will fully explain all issues and let me know how to proceed in morning.

 

The deficit could be cut if they just sorted out Northampton County Court !

 

The court are still waiting for the file to be returned from the judge. I have just received another letter from BC. They are stating that already sent documents which clarifies liability, the ones I posted earlier in thread.

 

They offer reduced payment, or pay monthly, included copies of consent orders and Allocation Questionaire. The consent orders are not dated but they are giving 14 days or will get court to strike out defence.

 

They seem confident that the documents will suffice in court. The court are being rubbish and seem to be backing BC. The previous letter regarding account on hold obviously rollocks !

 

At a loss of what to do next ! If I submit the allocation, i have to be confident in the defence, is this what BC banking on ???

[citizenB]

plsehelp, you need to make sure you get the N149 back to court on time. If I recall correctly, the application/agreement doesnt look right.

 

It doesnt help that you seem to being messed around by Northampton and I still dont understand Bryan Carter saying the account is on hold/returned to Capital One. ??

 

Looks to be a bit of a muddle if you ask me.

[vint1954]

The test to have your defence struck out will be a vigorous one. If you have put a full defence in, then it is unlikely to be struck out.

[plshelp!]

The judge cannot see a reason for this case to be stayed. The reason is that local and Northampton courts run a different system. When my defence was received Northampton waited the 14 days and then the stay was put in place but in local they would have issued an allocation Questionnaire on receipt.

 

The case proceeds as is ! I had one day left to file so now the judge is deciding if he will allow an extension which I doubt

 

What do I need to put as my defence regarding the agreement ? Could do with help today in order to get form sent, Thanks

 

CitizenB are the directions by pt2537 relevant here? Thanks

 

I have returned AQ using the directions from pt2537. The documents sent so far do not conform to the CCA, therefore I have used this response to request full documentation or if it cant be supplied there is not a case to answer.

 

I hope I have done the right thing, fingers crossed

[plshelp!]

Heard nothing from the court but received a letter direct from Capital One saying it will take a while to look into the situation, thanks for letter and they will try to respond within 4 weeks.

 

This is the response to the AQ. I guess I wait for a response from the court

[plshelp!]

I have received a court date in September, the judge has followed my directions and asked for a CCA that conforms to the Act and default notice etc.

 

Thanks pt2547, they have till the 30th to conform to the judges request.