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

[guzzleguts]

If there is no valid DN, then any assignment or NOA ( the NOA posted earlier on your thread is a very poor one at best) would be invalid and against regs.

 

I would ask them for the DN and proof of service.

 

Are you at court stage yet? or are they huffing and puffing?

 

GG

[letsdothis]

If there is no valid DN, then any assignment or NOA ( the NOA posted earlier on your thread is a very poor one at best) would be invalid and against regs.

 

I would ask them for the DN and proof of service.

 

I have SAR'ed Capital One, and they gave me all the BS about no signature. They sent me another letter which I received yesterday, stating that I could ring them and prove my identity that way. Which I have now done so. So it is a case of waiting for up to the 40 days for this information to come back. Although I sent the SAR weeks ago.

 

Are you at court stage yet? or are they huffing and puffing?

 

GG

 

No - I have CCA'd CQ and they have sent me:

 

1) NOA

2) An alledged copy of the agreement without prescribed terms

3) No Terms or conditions

4) A letter saying that all action is on hold for 28 days

5) No statement of account

 

I have also sent the 'letter in dispute' because of 2) 3) 5) above. I presume 4) was in response to this, although their letter was dated before my 'account in dispute' letter.

[guzzleguts]

I would also ask for the DN they should have already served, because if they haven't served you one or they cannot prove they have they will be on the back foot in this case.

 

You might want to brief yourself on the cca1974 on this issue, because without a valid DN they cannot sell the debt on, let alone any court action being taken.

 

IMO the NOA is not in correct format, im sure others more experienced than will confirm this.

 

Did you request the DN in your SAR, because they probably wont send if you didn't.

 

GG

[letsdothis]

I would also ask for the DN they should have already served, because if they haven't served you one or they cannot prove they have they will be on the back foot in this case.

 

Hi GG

 

I would assume that would be sent anyway due to what I have requested in my letter?

 

You might want to brief yourself on the cca1974 on this issue, because without a valid DN they cannot sell the debt on, let alone any court action being taken.

 

I will wait and see if a copy arrives or not. Although CQ said they defaulted this account not Cap One.

 

IMO the NOA is not in correct format, im sure others more experienced than will confirm this.

 

I have absolutely no idea on this either. Hopefully someone else will chip in.

 

Did you request the DN in your SAR, because they probably wont send if you didn't.

 

GG

 

As above not specifically. This is a copy of the letter I wrote and then sent to Cap One.

 

 

Dear Sir or Madam,

 

Formal Request under the Data Protection Act 1984 and 1998, and including the Right of Subject Access

 

I understand that you currently hold details of my personal / financial information within your internal record systems with regards to:

 

Account number: xxxxxxxxxx

 

Please supply me with complete details of all data held by yourselves, in regards to myself within your organisation, including, but not limited to:

 

1. Full copies of all contracts that you believe exist or have existed between myself and your organisation, including true copies of any documents you hold in support of the same.

 

2. A complete list of all transactions or statements relating to ALL accounts held by me with your organisation.

 

3. Copies of all documents which include any of my personal information including copies of any contracts or invoices, emails or computer records containing my personal information, or any records which pertain to this information.

 

4. Full copies or transcripts of any computer logs or database records kept in relation to me or in relation to my personal / financial information.

 

5. Full copies of any and all correspondence in postal, email or any other format that you have entered into with any individual, organisation or third party which contains my personal / financial information, or which pertains to me.

 

6. Where any previous information or records held have been deleted or disposed of, the methods used to do so, including dates, certificates or references confirming details of destruction. Where you are unable to provide such certificates, please provide a declaration, signed by an authorised officer of your company, confirming the dates and methods of destruction of this data

 

7. Full hard copy print outs of any of my personal / financial information held in a digital, magnetic or any other format which is held in any archives, backups or other storage devices / locations.

 

8. A copy of all telephone recordings are to be provided on a CD.

 

9. Full disclosure of all commissions or payments made or received by your organisation from / to any insurance provider.

 

Such submissions from yourselves, that the relevant data is now only held on Microfiche in date order and can only be provided at extra cost is unacceptable as it implies that such data is nonetheless retrievable.

 

I enclose the statutory maximum fee of £10.00 to access ALL data held by your organisation about myself.

 

You should be fully aware of your statutory obligations under the Data Protection Act and that any failure to comply with this request could result in an investigation by the Information Commissioners Office. You have 40 days in which to comply.

 

If you are unable to deal with this request, you should immediately forward it to the person within your organisation responsible for Data Protection.

 

I look forward to hearing from you in the first instance by acknowledgement of this letter, and a full response within the above designated time scale.

[guzzleguts]

I have sent 4 SAR's, and not one has sent the DN in question, i dont think they regard it as personal data, so if it doesn't turn up with the request i would send them another letter asking for it, because its pivotal in this case.

 

GG

[rhodium78]

NoA does not have to follow ANY format as long as it clear who the assignor is, who the assignee is, the amount of debt being assigned must be accurate if mentioned, and the date of the assignment if mentioned also has to be accurate. Looking at the NoA, it is clear what has happened and apart from the names being confusing, it conveys the message about what has happened and what is expected to happen.

 

There are no regs or statute or case law that prohibits the sale of a chose in action to a particular time. If I own a debt, I can assign the debt to whomever I want whenever I want, even to you. There might be more mileage if there was a DN and it stated that a consequence of not paying off the arrears would be the assignment of the debt, not the farming out of the debt to an agent... note the difference, but in this case, apparently there is no DN and they have assigned the debt before. A debt can be assigned right upto the point when court proceedings have started with a substitution of claimant so there is more mileage in the faulty DN argument rather than the NoA unless the assignment contract is obtained and a glaring error is seen there.

[letsdothis]

I have sent 4 SAR's, and not one has sent the DN in question, i dont think they regard it as personal data, so if it doesn't turn up with the request i would send them another letter asking for it, because its pivotal in this case.

 

GG

 

OK - Will ask for it if it doesn't turn up in the SAR - Thanks again.

[letsdothis]

NoA does not have to follow ANY format as long as it clear who the assignor is, who the assignee is, the amount of debt being assigned must be accurate if mentioned, and the date of the assignment if mentioned also has to be accurate. Looking at the NoA, it is clear what has happened and apart from the names being confusing, it conveys the message about what has happened and what is expected to happen.

 

There are no regs or statute or case law that prohibits the sale of a chose in action to a particular time. If I own a debt, I can assign the debt to whomever I want whenever I want, even to you. There might be more mileage if there was a DN and it stated that a consequence of not paying off the arrears would be the assignment of the debt, not the farming out of the debt to an agent... note the difference, but in this case, apparently there is no DN and they have assigned the debt before. A debt can be assigned right upto the point when court proceedings have started with a substitution of claimant so there is more mileage in the faulty DN argument rather than the NoA unless the assignment contract is obtained and a glaring error is seen there.

 

Thanks - Makes sense to me.

 

I am quite happy to offer a F&F settlement on this as previously stated, it's just getting to that stage, that's the stumbling block. If I can prove that the CCA is unenforceable, that should help my case of a lower amount?

[guzzleguts]

If you own a debt you can asign it to whoever , agreed, but you will need to of served a valid DN prior to selling it on.

 

GG

[rhodium78]

If you own a debt you can asign it to whoever , agreed, but you will need to of served a valid DN prior to selling it on.

 

GG

 

No I don't have to... I can sell the debt before a DN is served or after a DN is served, or even during court proceedings. A debt is an asset of a company and can be disposed of like a computer, a table, a stool, etc. If I could only sell a debt when a DN is served, it would mean that creditors that are selling their porfolios to other creditors, etc, would have to issue a DN to their debtors without any due cause or reason hence causing a breach of contract therefore giving rise an avenue of escape from the agreement for the debtor. Nothing in CCA 1974 or its subsequent amendments state that assignment must only be done in prescribed times.

[Hadituptohere]

Hi rhodium

 

But for the owner of a CCA74 debt to assign to a DCA who then demands full payment without issuing a default notice and goes on to issue in court is in breach of statute??????

 

Hadituptohere

[rhodium78]

You have two points there, one is the assignment of the debt, and the other is demanding full payment without a default notice. We are talking about the first point, the assignment of a debt which can happen at any time.

 

The second point of the demand of full payment is against statute without a DN and that is regardless of whether the debt is assigned or not assigned.

[Hadituptohere]

Thankyou was just trying to clarify that, thanks once again

 

Hadituptohere

[guzzleguts]

Thanks rhodium, i stand corrected you are right on this issue. So much info to digest, i got this muddled up.

 

Thanks again.

 

GG

[letsdothis]

Today I have had a reply from CQ telling me that they have passed my 'letter in dispute' onto their Compliance department, and that a Quality Assurance Officer will respond to my queries in due course.

 

They have also confirmed that my account will remain on hold whilst this matter is being investigated.

 

Any ideas on how to proceed re F&F anyone?

[The Mould]

Today I have had a reply from CQ telling me that they have passed my 'letter in dispute' onto their Compliance department, and that a Quality Assurance Officer will respond to my queries in due course.

 

They have also confirmed that my account will remain on hold whilst this matter is being investigated.

 

Any ideas on how to proceed re F&F anyone?

 

Hello there letsdothis,

 

Why not wait until they respond stating what their investigation has concluded?

 

Just a thought at the present time.

 

If you want to get an offer of settlement sent off to them, then come here and we can go through it.

 

Kind Regards

 

The Mould

[letsdothis]

Hello there letsdothis,

 

Why not wait until they respond stating what their investigation has concluded?

 

Just a thought at the present time.

 

If you want to get an offer of settlement sent off to them, then come here and we can go through it.

 

Kind Regards

 

The Mould

 

Hi The Mould as per usual thanks for your input.

 

Ideally, I would like to get them off my back once and for all. The snag is, I think that the alledged agreement is unenforceable, but they are adamant once the T and C's are sent to me, they believe it is enforceable.

 

What I would like to happen with this is to pay a reduced F&F and also get all adverse data removed. I do believe I owe them some money, but not all, as a lot of it would be made up of default charges etc

 

I am at the same time SAR'ing Cap One and would like to then start the reclaim process of those charges at some point in the future. However, as everyone knows Cap One are a tough nut to crack.

 

I think the course of action to try for is:

 

1) All adverse data removed

2) A F&F settlement of approx 20 to 25% (I can get the money from a family member for this) total to be paid approx £500 tops

3) Any monies received from Cap One (in the future) from the settlement of charges to be sent on to me if Cap One pay it to them direct, as historically shown - So CapQuest do not get paid twice so to speak

 

If CQ can agree to that, they have made at least double what they paid for the account, I would be happy that I have paid off what I reasonably think I would owe if the agreement was enforceable. And at the end of the day, I would get some of the unfair charges back in my account.

 

What does anyone else think?

 

Am I best waiting for the response from CQ to the investigation and also the SAR from Capital One before taking it any further?

[diddydicky]

ok

 

it is a pre contractual application form

 

it is not headed CREDIT CARD AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974

 

It does not contain, between the heading and the signature boxes the prescribed terms of the contract and other essential information

 

i cannot see the print in the bottom as to if it refers to any terms and conditions overleaf or attached

 

the prescribed terms must be CONTAINED within the signature document

 

The Whole of the terms and conditions must be EMBODIED within it 9this could include attached to it)

 

i think you already worked out that terms are referred to and are not there

 

you must have been supplied with a copy of the signed agreement within 7 days of signing the agreement

 

all in all this is almost certain to be a naff agreement (why else would they sell it for peanuts?)

 

Dont worry about what you admitted or offered over the phone- you were undoubtedly pressured and out of your depth and now know what you did not know before

 

it would be small claims which would mean that they cannot load costs onto you

 

i personally would write and state that having taken advice you are more than confident that the agreement is not a legally enforceable agreement , however in order to rid yourself of the nuisance value you will offer £250 in full and final settlement of the matter failing which you intend to defend any action that may be brought against you

 

but the choice is yours

 

you will get plenty of help to defend it on this forum

 

i doubt that you will get the adverse removed - you cant have your cake and eat it

[letsdothis]

Hi diddydicky, many thanks for your advice and time taken to read and reply, it is appreciated.

 

I think, although I may be wrong, that I may well be best to wait for my SAR to come back from Cap One. This way I can then see the amounts involved re the charges etc

 

tbh I have absolutely no idea of how many there are, and it maybe the case, that when these are added together with contractual interest along with the 8% interest that these alone could write off the amount owed anyway.

 

Or am I completely wrong with that thinking?

 

As for the F&F (if I go down this route after above) - The reasons that you mention,

 

 

• it is a pre contractual application form
  
• it is not headed CREDIT CARD AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974
  
• It does not contain, between the heading and the signature boxes the prescribed terms of the contract and other essential information
  
• the prescribed terms must be CONTAINED within the signature document
  
• The Whole of the terms and conditions must be EMBODIED within it 9this could include attached to it)
  

Would it be best to include those reasons in my letter?

 

As regards to this,

 

i personally would write and state that having taken advice you are more than confident that the agreement is not a legally enforceable agreement , however in order to rid yourself of the nuisance value you will offer £250 in full and final settlement of the matter failing which you intend to defend any action that may be brought against you

 

Would it be a good idea to actually offer this now, and forget about the reclaiming of the charges, or wait as per my paragraph above?

[diddydicky]

if you wanted to make an offer now it would not hurt but i would be brief and to the point

 

no need to mention any of the reasons- just that you are satisfied that they do not have a properly executed and/or legally enforceable credit card agreement

 

as you say i would be inclined to wait for the SAR to come back

 

why hurry!

[letsdothis]

if you wanted to make an offer now it would not hurt but i would be brief and to the point

 

I will wait and see what the SAR uncovers I think.

 

no need to mention any of the reasons- just that you are satisfied that they do not have a properly executed and/or legally enforceable credit card agreement

 

OK Understood.

 

as you say i would be inclined to wait for the SAR to come back

 

why hurry!

 

I took your advice, I will wait for the SAR

 

Today was the 14th day after them receiving my account in dispute letter. I have had no response since their letter that they have passed my 'letter in dispute' onto their Compliance department, and that a Quality Assurance Officer will respond to my queries in due course.

 

What happens now, anyone know?

[Mozz1]

I've never seen an enforceable Capone agreement, so the chances of them producing one are remote. That's probably why they've sold it.

 

Send the dispute letter, and see if they come back with anything else.

 

Sory to interject on this thread. In your experience, are Egg Banking Plc agreements generally enforceable? I took out an Egg card in 2004 or thereabouts and they sold it on to CapQuest. CapQuest have now sent a letter before action. I have CCA'd them and also SAR'd Egg.

[letsdothis]

Sory to interject on this thread. In your experience, are Egg Banking Plc agreements generally enforceable? I took out an Egg card in 2004 or thereabouts and they sold it on to CapQuest. CapQuest have now sent a letter before action. I have CCA'd them and also SAR'd Egg.

 

Hi

 

You maybe better starting a new thread in the Egg section of the forums for others to give you some better advice than I could.

 

I did send CQ a CCA and they did respond, but only with the front page of the agreement, which does not have the prescribed terms on. They also sent a NOA and as such, no Terms and Conditions.

 

A CCA should result in a hold on your account until such time that they comply. You may have to send them a 'letter of dispute' if they don't provide the CCA within 12 days of them receiving it. Did you send it by Recorded Delivery? If so, the day that they received it, start counting 12 days, and on the 13th day send them the 'letter of dispute'

 

Until they comply, they cannot launch any legal action against you from what I understand.

[Mozz1]

letsdothis, thanks. So the CCA is not the letter of dispute then? Is there a precedent letter of dispute somewhere on this site?

[letsdothis]

letsdothis, thanks. So the CCA is not the letter of dispute then? Is there a precedent letter of dispute somewhere on this site?

 

These are the ones that I have sent.

 

CCA Request

 

Dear Sirs

 

Re: xxxxxxxxxx

 

 

I do not acknowledge ANY debt to your company. I require you to supply the following documentation before I will correspond further on this matter.

 

1. You must supply me with a true copy of the alleged agreement you refer to. This is my right under your obligation to supply a copy of the agreement under the legislation contained within s.78 (1) Consumer Credit Act 1974 (s.77 (1) for fixed sum credit) - your obligation also extends to providing a statement of account. I enclose £1 in payment of the statutory fee.

 

2. A signed true copy of the deed of assignment of the above referenced agreement that you allege exists.

 

3. You are notified that you are obliged to supply these documents, whether you are the original creditor or not under S189 of the CCA 1974.

 

Non-compliance with my request is a criminal offence under the above Act and will result in a report being submitted to the relevant statutory authorities, therefore if I do not receive evidence that I owe your company any monies by [DATE], I will have no hesitation in passing your details to the Office of Fair Trading.

 

As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defence to any court claim that is issued.

 

Take note at this stage, that any legal action you may contemplate will be both vigorously defended and contested.

 

Yours faithfully

 

 

Letter of dispute

 

Re: XXXXXXXXXX

 

Dear Sir/Madam

 

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 [DATE] I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. This was signed for as delivered on the [DATE]

 

You have failed to comply with my request, and as such the account entered default on [DATE]

 

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 your client 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.

 

Yours faithfully