CapQuest

[Mozz1]

In or around 2003/4 I took an Egg credit card and in 2005 CapQuest took over collections. I pay a reduced monthly repayment to them. I was 10 days' late this month and they sent a Letter Before Action.

 

I sent CapQuest a CCA and Egg an SAR.

 

CapQuest wrote back saying that I have to write to Egg for the CCA and returned my postal order (not sure what to do with that as its crossed payable to CapQuest).

 

Anyway, I am led to believe that CapQuest have to forward my request on to Egg?

 

And can CapQuest sue me when they don't own the debt? As an agent for Egg perhaps?

 

This is my letter to them. Any coments thereon would be greatly appreciated.

 

Can you let me know if you think this is a suitable response to send to CapQuest?

 

Your opinion valued!

 

**

 

Dear Sirs

 

Account No. XXXXXXXX

 

Further to your letters of XX June and XX June 2010 respectively.

 

Request for a True Copy of the Original Credit Agreement

 

Your letter of XX June 2010 refers. You are obliged to pass on my request for a true copy of the original agreement to your client, Egg Banking Plc. Your obligation arises under s.175 and s.189 of the Consumer Credit Act 1974.

 

I therefore ask that you pass on this request to Egg and I return specifically for this purpose:

1. My letter dated XX June 2010; and

2. My postal order in the sum of £1.00 in respect of the statutory fee.

disputed account

Your letter of XX June refers. I deny any commitment on my part to repay the above account, either to your firm or to your client, Egg Banking Plc. My correspondence to you of XX June 2010 was clear in that regard. Repayments will continue voluntarily “until” the issue of the disputed account has been dealt with.

On this basis, on receipt of a true copy of the original credit agreement I will decide if the account should be disputed. If it goes into dispute I will cease all repayments, as I am entitled to do in law.

Legal Action

You are unable to commence action while my request for a true copy of the original credit agreement is being dealt with. Further, if the account goes into dispute you are unable to commence action.

It is clear from your correspondence of XX June 2010 that there is no Notice of Assignment to your firm. You are unable to enforce any action without ownership of the debt and Egg must issue proceedings.

Yours faithfully,

[Mozz1]

Hi Deb. Thanks for the intel.

Is the legal action paragrpah entirely wrong? I had thought they couldn't sue while the CCA was being requested and/or the account was in dispute?

The point about them as a third party suing me is noted and I will amended the letter accordingly.

 

Ref Egg: did you stop paying them after the 40 days ended? Are a DCA involved in your case? Any legal proceedings?

[Mozz1]

They can take you to court when they like, if they choose to do so without an enforceable credit agreement in place then that is their choice and they run the risk of their action not getting off the ground.

 

Ok. Well I'm happy for them to commence a court action now without a credit agreement being produced, so I'm gonna leave that part of my legal action paragraph in place. I suspect Eggster will struggle with the CCA within the time limit.

 

Question Ref the Time Limit on a CCA: If they can commence legal action without producing a CCA, why is the 12 day limit so important? I have been reading posts all over this site about that 12 day CCA period, but if you're right then the time frame to supply the CCA means diddly squat?

 

I will have to take a good look at my cedit file. I do resent paying the credit agencies money though just to check up on things. Which ones did you check?

[Mozz1]

Thanks - I've sent a grateful reputation point to you, Deb! Its good to get info from someone who knows what's what.

 

Do they / can they charge interest on the non-payments during the disputed account period?

[Mozz1]

Agreed. Although in my case Egg still own the debt and are charging the interest.

 

I have also just checked Experian using your link (for which, thanks). Its interesting; I thought I had a credit card with them but it was a loan. Taken out in 2005 not 2004. They defaulted me 4 years ago. Following yuor experiences I will make a note of the default date. They can't do it twice for the same debt.

[Mozz1]

The credit report is interesting for what it doesn't tell me. It says I'm repaying £50 over 125 months since 2006 when in fact I've been paying £100 to CapQuest for some time now and presumably not on a 125 month term (open-ended, I was led to believe).

 

CrapQuest kept upping the repayments every time they forced me to call them.

 

Now I do everything by post.

[Mozz1]

Hi. Hope you guys are still around.

 

CapQuest have sent their second letter now saying they are not responsible for sending my CCA request onto Egg and they have returned my letter and my postal order again (that's twice now).

 

They also returned the letter in which I denied any commitment to pay them.

 

Its quite disgusting, but where now? Who do I complain to if they are, indeed, obliged to pass on this request? All they've said is "our client has requested you send your CCA request direct to them."

[Mozz1]

Sounds like a plan mate.

[Mozz1]

Deb and Angry Cat, I will follow your sound advice. Am actively looking forward to doing it! Thank you very much indeed for your support.

[Mozz1]

Hi.. I've used an adapted version of the dispute letter supplied by letsdothis at http://www.consumeractiongroup.co.uk/forum/legal-issues/260758-valid-cca-they-say-3.html

 

I will fire shots off to the OFT and Consumer Direct now as well.

[Mozz1]

Egg have not replied to my separate CCA request. So I will send dispute letter to them now as well.

 

I received a letter from CapQuest confirming my account is "on hold" and that they will investigate my complaint "in line with our in-house procedures" and that I can expect a "Quality & Assurance Officer" to be in touch. Their atatched complaints handling leafleft then stipultates a 5, 28 and 56 day time frame for a final response from them plus the usual FOS contact info if the complaint isn't resolved.

 

So I have sent a FURTHER complaint to CapQuest stating that their stipulated timeframe of 5, 28 and 56 days is UNFAIR and MISLEADING because of the delay I am experiencing in receiving any CCAs from them or the OC. Another one for the OFT etc etc

Edited July 9, 2010 by Mozz1
/

[Mozz1]

1 letter from CrappyQuest's "Quality Assurance Officer" today about my complaint they had refused to forward my CCA request to the OC.

 

I quote:

 

"CapQuest were instructed by Egg on XX 2006 to contact you regarding an outstanding balance of XX. CapQuest were unaware of any issue or dispute at this time and were acting in good faith based on the information supplied by Egg.

 

"I can confirm that your initial letter was received on X June 2010 for a request of a copy of the Agreement regarding the above account. As CapQuest are working the account on behalf of Egg they were instructed to advise all customers that requests for copies of Agreement under the CCA should be sent directly to themselves.

 

"I can confirm that 2 letters were sent to you by us on X June and X June informing you that you needed to send your request to Egg directly."

 

unquote

 

AND the OFT wrote back today saying they don't investigate individual cases but appear interested in CrappyQuest's track record on this and have asked me to sign a form confirming they can investigate 'em.

[Mozz1]

see

 

http://www.oft.gov.uk/shared_oft/consultations/OFT1175con.pdf;jsessionid=DB465919D6932F26976261B6B8C2836D

 

It tells us all we need to know. No need to go much further with this it seems.

 

in a nutshell, CapQuest are right, they do NOT have to provide a copy of the CCA and can refer it to Egg provided the debt not assigned to them (mine wasn't).

 

Moreover, there are very interesting guidelines on what constitutes an acceptable and indeed enforceable agreement in the attached.

 

But specifically:

 

1.9 The sanction under the Act for non-compliance with an information

request is unenforceability of the credit or hire agreement for so long as

the creditor or owner fails to comply with his duty.

 

3 Where there is such

a failure, the courts have no discretion to allow enforcement.

 

1.15 At the same time, it is important to remember that the purpose of these sections is to provide information to the consumer, not to provide a

method for consumers to avoid paying their debts. Unenforceability is

merely the sanction where there is a failure to provide the information.

The OFT takes the view that the sections should be read in a way that

allows the consumer to obtain the information he or she needs in order

to be properly informed without imposing unnecessary burden on

business. The OFT’s view is confirmed by the recent decision in Carey v

HSBC Bank plc [2009] EWHC 3417 (QB) that the requirement to provide

information under section 78 is not to establish whether or not there

was a properly executed agreement in the first place and that, given the

small fee and short timescale, the copy should be relatively

straightforward and cheap to create.

 

2.4 For there to be a valid request, it must be made to the 'creditor' or the

'owner', and it is on the 'creditor' or the 'owner' that the duty to comply

with the request lies. The definition of these terms is to be found in

section 189(1) of the Act. It clearly includes the creditor or owner who

enters into the agreement and also anyone to whom the rights and

duties under that agreement have passed by operation of law. In the

OFT’s view, where there has been a novation (that is, the debtor or hirer

has agreed that a new party will be substituted as creditor or owner for

all purposes under the agreement) the new party is the creditor or the

owner. It is further the OFT’s view that, giving the definition of the

terms a purposive construction and one which is most likely to assist the

consumer, the 'creditor' or 'owner' includes an assignee of only the

rights under the contract. Thus, the OFT considers that the 'creditor' in

sections 77 and 78 and the 'owner' in section 79 includes a person who

has merely bought the debts under the agreement. The OFT is however

aware that the point has yet to be decided by the higher courts.

 

2.5 In any event, the OFT considers that it is an unfair business practice to

seek to take advantage of any confusion, ignorance or difficulty on the

part of the debtor as to whom he or she should send an information

request where there has been a sale of the debt. The debtor has asked

for information and if the recipient considers that another person is the

creditor or owner, the recipient should either inform the debtor or hirer of

who it considers is the correct recipient or pass the request on to that

person for it to be dealt with by them. In that way the consumer can be

assured that any request will be made or will have been made to

someone who is prepared to accept responsibility for responding to it.

 

A copy of the executed agreement

2.16 The meaning of 'copy' is dealt with in section 180 of the Act and in the

regulations made under that section, the Consumer Credit (Cancellation

Notices and Copies of Documents) Regulations 1983 ('the Copies of

Documents Regulations').

OFT1175con | 11

2.17 The copy of the executed agreement must be a 'true copy' of the

original. However, as confirmed in the recent case of Carey v HSBC

Bank plc,7 the term 'true copy' does not mean a carbon, photocopy,

microfiche copy or other exact copy of the signed credit agreement.

2.18 Further, section 180(1)(b) and regulation 3(2) of the Copies of

Documents Regulations expressly allow certain matters to be omitted

from the copy. There may be excluded from the copy of the executed

agreement to be provided under these sections:

• any information relating to the debtor, hirer or surety, or information

included for the use of the hirer or creditor only, which is not

required to be included by the Act or any regulations made under the

Act as to the form and content of the agreement

• any signature box, signature or date of signature

• in the case of pawn agreements, any description of the article taken

in pawn.

2.19 Often consumers and their advisors assume that if a signed copy is not

provided by the creditor or owner, this necessarily means that the

agreement cannot be enforced: either on the basis that section 77(1),

78(1) or 79(1) (as the case may be) has not been complied with, or in

reliance on section 127(3) (in the case of agreements to which that

subsection still applies). This overlooks the fact that there is no

obligation on an information request to provide a copy which includes a

copy of the signature. It also overlooks the fact that section 127(3) does

not apply merely because a signed document is not available at the court

hearing; the section requires that a document containing the prescribed

terms 'was' signed by the debtor or hirer. The creditor or owner may be

able to provide evidence that its practice was always to require a

signature to its agreements and that its agreements always complied

7 [2009] EWHC 3417 (QB).

OFT1175con | 12

with section 61(1)(a) of the Act and the debtor or hirer may be unable to

satisfy the court that he or she did not sign an agreement.

2.20 The creditor or owner may not have preserved a copy of the executed

agreement. Since the requirement is not to provide an exact copy, let

alone a carbon, photocopy or microfiche copy, it can reconstitute a

copy. It can do this, for example, by re-populating a template of the

relevant agreement form with the details of the specific agreement taken

from its records, a method approved in Carey v HSBC Bank plc.8 This

will provide the information that the debtor or hirer may require as to the

terms of the agreement. If the creditor or owner does provide a

reconstituted copy, it should explain that that is what it has done, to

avoid misleading the consumer that this is a contemporaneous copy. It

can explain that this procedure is satisfactory under the Act.

2.21 However, the reconstituted copy must be a 'true copy' of the executed

agreement. It must therefore contain any terms and conditions which

were contained in the original, together with all the prescribed

information and statements of protection and remedies required by the

Consumer Credit (Agreements) Regulations 1983 that were set out in

the executed agreement. The creditor or owner must ensure that it gives

the terms and conditions applicable at the time the contract was

executed. It was held in Carey v HSBC Bank plc 9 that, subject to

spelling mistakes and similar discrepancies (described as 'low level

omissions'), only those matters listed in regulation 3(2) could be omitted.

The name and address at the time of execution must therefore be

included, although, as Carey explains, that can be taken from any source

available to the creditor or owner.

Edited July 14, 2010 by Mozz1
oops over cut n pasted

[Mozz1]

Got this from Trading Standards today. They are backing CapQuest's antics!

 

I quote in full:

 

"Dear Sir

 

"Consumer Direct have forwarded your letter concerning CapQuest Debt Recovery to us together with your copy correspondence.

 

"I note your comments regarding the response you have received from CapQuest however I would advise that the duty to give information under S77-S79 of the Consumer Credit Act has been under debate for some time and this is currently the subject of consultation by the OFT for clarification. A copy of their consultation document can be found at Guidance on unenforceable agreements - The Office of Fair Trading

 

"I note that you have already been making voluntary payments and you wish to deal with this matter. As the OFT have not yet published their final guidance and clarification on the legislation it would be advisable to contact Egg directly (if you have not already done so) for a copy of your executed agreement using the information provided by CapQuest in their letter to enable this matter to be resolved."

[Mozz1]

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Edited July 21, 2010 by Mozz1
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[Mozz1]

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Edited July 21, 2010 by Mozz1
deleted