Is This A Valid CCA? They Say Yes - I Say No

[slick132]

HI LDT,

 

If you were to get the full £4.7K in penalty charges and int't refunded, approx how much would be left owing on the a/c.

 

I think this is crucial to your decision on how to proceed.

[letsdothis]

HI LDT,

 

If you were to get the full £4.7K in penalty charges and int't refunded, approx how much would be left owing on the a/c.

 

I think this is crucial to your decision on how to proceed.

 

Hi Slick

 

If they refunded the full £4.7k then my account would be settled in full, with approx £2.7k owing to me in the form of a refund.

[slick132]

Hi LDT,

 

If you are happy that your SOC is correct and you have a claim for charges and interest in restitution for £4.7K, I would go ahead with court action. If you've already sent an LBA claiming the refund, file your N1 without further notice.

 

There's no need to question the validity of the credit agreement and no point in waiting for the bank to take any action against you.

 

Suing for the refund avoids the need to get into the murky realms of credit agreement enforceability.

Edited August 11, 2010 by slick132
typo

[letsdothis]

Hi Slick

 

If you are happy that your SOC is correct and you have a claim for charges and

interest

in restitution for £4.7K, I would go ahead with court action. If you've already send an lba

claiming the refund, file your N1 without further notice.

OK - I will do a LBA tomorrow. The only thing that worries me is the fact some of the charges are over 6 years old. What would be my arguement to justify those ones?

 

There's no need to question the validity of the credit agreement and no point in waiting for the bank to take any action against you.

 

Suing for the refund avoids the need to get into the murky realms of credit agreement enforceability.

Yes - I have only not really done anything so far, because I was holding it for a counterclaim in case CapQuest started any action. I am fairly sure that the agreement is unenforceable, but the charges side of things does more for me rather than have a fight for 6 years with a DCA - The charges would pay the full value of the so called debt and also pay another couple of debts off as well.

[slick132]

Hi LDT,

 

You will rely on s.32 Limitation Act 1980 on the basis that you did not realise until recently that the penalty charges levied against you were unlawful.

 

BC effectively concealed the nature of these charges and you can therefore reclaim them beyond the normal 6 years allowed by the Limitation Act.

[letsdothis]

Hi LDT,

 

You will rely on s.32 Limitation Act 1980 on the basis that you did not realise until recently that the penalty charges levied against you were unlawful.

 

BC effectively concealed the nature of these charges and you can therefore reclaim them beyond the normal 6 years allowed by the Limitation Act.

 

Hi Slick

 

I have sent off the LBA mentioning the fact that I want all the charges back, plus CI and Stat Interest, and that any charges over 6 years old, I am claiming back as per s.32 Limitation Act 1980 on the basis that I did not realise until recently that the penalty charges levied against myself were unlawful. Not holding out too much as I have just realised their letter stated it was a final response.

[slick132]

If that was their final response, you can file your court claim without further warning, if you want.

[letsdothis]

If that was their final response, you can file your court claim without further warning, if you want.

 

Hi Slick

 

I have already sent the letter this afternoon, so I think I will wait for the 14 days to see what happens. If nothing then, it's a court claim without further warning. I did offer them a slightly lower 'Without prejudice' settlement figure. They would save a substantial amount if they choose to accept this lower amount and then settle.

 

See you in 2 weeks on this thread. I'll bring some Coke and popcorn for us all. (and some Vodka or Bacardi)

[slick132]

Ooooh, Bacardi please with Diet Coke.

 

That sounds v sensible, about the Without Prejudice lower settlement figure............

 

............ unfortunately, BC don't often do "sensible".

[Mozz1]

2) To get a F&F and then get all of the adverse data removed and then it would finally be sorted out once and for all

 

I

 

I'm not sure thats entirely right either. I think they just mark it up as "Partially Settled" and do not remove the adverse until it drops off at the end of the 6 years.

[diddydicky]

F & F ssettlements with the creditor removing adverse credit is as rare as hens teeth

 

F & F in itself is a good result in most cases and you should be prepared to put up wtih the adverse credit for 6 years

 

the finance companies long since agreed between themselves that they would just be shooting each other in the foot by removing adverse as part of settlements (unless there was a legal reason to do so)

[slick132]

If the refund is agreed, the debt is settled in full and LDT gets a refund for the balance, I would say there's every reason to press for all adverse data to be removed.

 

Particularly any default, as it would have included unlawful penalty charges, rendering the default inaccurate.

 

I'm not saying it'll be easy but I think it's worth a go, once the refund of charges and interest is resolved.

 

Perhaps the N1 should also include request for removal of any default.

[letsdothis]

F & F ssettlements with the creditor removing adverse credit is as rare as hens teeth

 

F & F in itself is a good result in most cases and you should be prepared to put up wtih the adverse credit for 6 years

 

the finance companies long since agreed between themselves that they would just be shooting each other in the foot by removing adverse as part of settlements (unless there was a legal reason to do so)

 

Hi Diddy

 

Initially I was going to try the chepaer alternative of a low F&F as the agreement imho is unenforceable. Taking them to court is pointless on that score, as we all know.

 

I was then holding out for the fact that I could counterclaim if CQ started action anyway, 1) The faulty agreement 2) Because I knew they owed me a refund of the charges etc

 

However, it is quite apparent especially, due to the amount of the refund and the CI and Stat Interest, that my best course of action is to actually pay off what they say I owe and then get a refund of the balance back to me. I wasn't sure initially of how much I actually was due, although I did initially manage to negotiate over a 50% settlement with CQ anyway.

 

I still think that I should try for the default removal at the very least though, as the default amount did include over 50% of it anyway, unlawful charges.

[diddydicky]

absolutely no harm in trying- i was more concerned with warning of the actual likely outcome and being prepared to be stuck with adverse

[letsdothis]

I'm not saying it'll be easy but I think it's worth a go, once the refund of charges and interest is resolved.

 

Perhaps the N1 should also include request for removal of any default.

 

I agree re the default, someone else on here is doing this at the moment and it has already been submitted and Cap One has so far issued a defence. Whether or not they give in before court we don't know. If they do, then that is the POC's that I shall use.

 

Either way, I need to wait until at least 31st August before I even issue the summons, so the 14 days I have given them will cover that time period anyway. I will say one thing though, they didn't offer me a particularly low refund initially which is what I was expecting from them. Obviously the template I modifed and then sent did the job re the £12 difference that Cap One normally send out type letter.

[letsdothis]

absolutely no harm in trying- i was more concerned with warning of the actual likely outcome and being prepared to be stuck with adverse

 

I agree, my CRA id trashed anyway. But if you don't ask you don't get.

[letsdothis]

I have now had a letter off HL Legal Solicitors telling me that they are going to prepare my case for litigation. Do I write telling them;

 

1) The agreement is unenforceable

2) That I would counterclaim the £4.7k even though Cap One do not own the debt, and CapQuest do?

[The Debt Star]

I have now had a letter off HL Legal Solicitors telling me that they are going to prepare my case for litigation. Do I write telling them;

 

1) The agreement is unenforceable

2) That I would counterclaim the £4.7k even though Cap One do not own the debt, and CapQuest do?

 

Before you do, open this link and decide which of these clowns to address your letter to. Suggest the Head of Dept. Rhona Lavendar. Make it clear you dispute the account. http://www.hllc.co.uk/careers.php

[letsdothis]

Thanks TDS

 

That's a nice website they have there.

 

I have already sent CapQuest a dispute letter in the past, but they are obviously now ignoring it.

 

I know there is another one that I could send mentioning the fact thet the agreement does not include the T and C's within the four corners of the agreement, but for the life of me I cannot find it.

Edited August 18, 2010 by letsdothis

[letsdothis]

Just to add as well, if I am right in thinking.

 

Now that they have threatened legal action, I am pretty sure there is a CPR procedure whereby I can ask for a copy of the documents etc that they would be relying on in court. Would this be an appropriate one to send also?

[The Debt Star]

Hi LDT.

You might be best advised to post the litigation question on the legal forum. However, I suspect that you have been sent their bulk bog standard letter before action. it probably says what mine did, that they have levied a £12 admin charge?

I don't think there's any point requesting the CPR Part 18 information just yet as HL gaven't actually commenced proceedings.

This is what kicked off my dispute with Egg. I got a letter before action from HL. I then wrote to Egg and CapQuest with a CCA and SAR and disputed my account when I didn't get the CCA. When I got the CCA it was kosha and referred to the T&C in the agreement. However, I have used other reasons to complain to Egg and CapQuest (see my thread Can i continue My Dispute with Egg). Eventuallym, after I comlained like 4 times to CapQuest about their threat-o-grams to the Trading Standards, OFT and FOS they backed off and sent my account back to Egg. Like FOUR YEARS after I have paying them. You won't hear further from HL but if I were you I'd write to HL telling them the account is in dispute and that they CANNOT enforce the agreement until that dispute is remedied and the FOS are looking into your dispute. Suggest they wait til the FIS has adjudicated (FOS won't look at legality of your CCA but kick off the complaint with the FOS regardless and throw in a few other things about Egg and CapQuests antics).

Write to Egg and CapQuest telling themm to get HL to back off.

If receive a claim form from the court then yeah you'll need to Part 18 them for the info you want.

 

Are the T&C the only issue you have with the agreement or is there anything else mightily wrong with it?

[diddydicky]

sorry i missed the fact that your claim exceeded theirs- so i would just carry on as you were- dont bother waiting for them to proceed against you

[The Debt Star]

sorry i missed the fact that your claim exceeded theirs- so i would just carry on as you were- dont bother waiting for them to proceed against you

 

Me too. But I would still write to HL along the lines of post #117 above.

[letsdothis]

Hi LDT.

You might be best advised to post the litigation question on the legal forum. However, I suspect that you have been sent their bulk bog standard letter before action. it probably says what mine did, that they have levied a £12 admin charge?

 

Hi TDS

 

The OC was Capital One, CapQuest have bought the debt off them, probably because of the age of the agreement. 2001

 

I CCA'ed CapQuest and they sent me the NOA, the front page of the agreement, which is at the beginning of this thread. But no T and C's

 

CapQuest then sent me the T and C's but these are obviously reprinted and not from the back of the agreement, as there are about 6 pages or so of them.

 

I put the account in dispute with CapQuest and they then wrote a long leter back saying that they do not believe it is in dispute, and then today I received a letter off HL Legal.

 

It does not mention anything about an admin charge.

 

I don't think there's any point requesting the CPR Part 18 information just yet as HL gaven't actually commenced proceedings.

This is what kicked off my dispute with Egg. I got a letter before action from HL. I then wrote to Egg and CapQuest with a CCA and SAR and disputed my account when I didn't get the CCA. When I got the CCA it was kosha and referred to the T&C in the agreement. However, I have used other reasons to complain to Egg and CapQuest (see my thread Can i continue My Dispute with Egg). Eventuallym, after I comlained like 4 times to CapQuest about their threat-o-grams to the Trading Standards, OFT and FOS they backed off and sent my account back to Egg. Like FOUR YEARS after I have paying them. You won't hear further from HL but if I were you I'd write to HL telling them the account is in dispute and that they CANNOT enforce the agreement until that dispute is remedied and the FOS are looking into your dispute. Suggest they wait til the FIS has adjudicated (FOS won't look at legality of your CCA but kick off the complaint with the FOS regardless and throw in a few other things about Egg and CapQuests antics).

Write to Egg and CapQuest telling themm to get HL to back off.

If receive a claim form from the court then yeah you'll need to Part 18 them for the info you want.

 

I haven't actually reported CapQuest to anyone at the moment, and I have a LBA against Cap One sent last week asking for the £4.7k back that they owe me for unfair charges, late fees, and Contractual / Stat Interest. My balance of the Cap One account is said to be just less than £2000 according to CapQuest and Cap One. Therefore, I am owed more than I owe CapQuest.

 

The problem is (or that I can see) Cap One owe this to me, and any balance that I may owe to Cap One is technically owed to CapQuest as they bought the debt.

 

Are the T&C the only issue you have with the agreement or is there anything else mightily wrong with it?

 

The agreement to me is unenforceable.

 

 

As it has none of the prescribed terms on it. As previously stated, they have sent a copy of the T and C's but these are on about 6 or 7 pages, and there is no way that they could have been within the 4 corners. I understand this was later addressed, but the date of the original agreement is 2001 so does not come into it afaik

 

The T and C's they have sent do not even correspond to the correct amount being charged for default charges, as in my statements from Cap One show £20 etc but the T and C's have a lower amount, and so could not be from the original agreement anyway.

 

Also the Agreement was sent initially, but with no T and C's and so if they were part of the original agreement, then surely they would have sent them all at the same time.

[letsdothis]

sorry i missed the fact that your claim exceeded theirs- so i would just carry on as you were- dont bother waiting for them to proceed against you

 

Hi DD

 

Do I even need to correspond with HL Legal or not?

 

As in should I write and tell them it is in dispute over the agreement being unenforceable, and that I am pursuing the charges back from Cap One?

 

I have absolutely no problem with paying Cap One or Cap Quest the balance of the account, but I am not going to do so, until I get the money;

 

1) Credited back to Cap Quest from Cap One and the balance refunded to me

2) A cheque for the full amount from Cap One and then I negotiate the repayment to CapQuest

 

Capital One have about 10 days to respond to my letter before action, but so far I have heard nothing.

 

Are you saying that after the deadline has passed for the LBA I then proceed as in the court claim filed, and see what happens in the meantime from CapQuest / HL Legal?

 

Or, if HL Legal start action I would then counterclaim the £4.7k that way?