*Capquest and Limitation Act bluff?*

[kathleenbilly]

I'm helping a friend who is being written to by Capquest for a big loan of 25,000 from Bank of Scotland

 

This loan was border line he tells me about 6 years and he defaulted on it and made no payments or contact etc.....I send them a limitation Act letter to which they have replied that the account was opened on the 25/10/04

 

Just a couple of months within the 6 years......A bluff by them???

 

I have searched his credit file on Experian and there is no details or record of this loan? No couty court Judgement nothing?

 

I will be looking at his Equifax file on Monday/Tuesday maybe it would be on there?

 

Any views on this or my next letter please or should i continue with the Limitation act angle or possible go with this letter below?

 

Dear Sir/Madam

 

Re:− Account/Reference Number

 

This letter is a formal request pursuant to s.77/78 of the Consumer Credit Act 1974. I require you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.

 

I expect you to comply fully and properly with this request, within the statutory time limit. You are reminded that should you fail to comply with my request, the provisions of s.77 will apply.

 

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

 

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection From Unfair Trading Regulations 2008 (CPUTR).

 

I enclose a postal order in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose.

 

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee.

 

We look forward to hearing from you.

 

Yours faithfully

Mr A N Other

Edited July 12, 2010 by kathleenbilly

[Pinky69]

You definitely want a copy of the agreement but you also want to know what payments were made as SB starts from the date of the last payment. I would send the BOS an SAR to get all the details on the account and you will get a copy of the agreement in the SAR.

[kathleenbilly]

Firstly thanks for the reply,

 

Correct me if i'm wrong but don't all banks seek a County Court Judgement when a loan is not paid?

 

Given the amount i'm sure they would of sought a County Court Judgement and this would of shown on Experian.

 

I really want to see if it's on Equifax in any way...''

 

If this is not shown on the credit files than i'm presuming the 6 years have passed? hense no record of it?

 

Then maybe the Limitation Act does apply and they are bluffing.....

[unclebulgaria67]

Why not make a subject access request under data protection to BOS. They should provide all the information that your friend needs, including copies of statements, CCA, default notice, notice of assignment.

 

Your friend could send this letter to the relevant BOS address by recorded delivery, addressed to the Data Protection/Compliance officer. They would need to include a £10 postal order.

 

Data Protection Act 1998

Subject Access Request

 

Dear Sir/Madam

 

 

ACCOUNT NUMBER: xxxxxxxxx

 

 

Please supply me with all data that you hold on me. This includes in particular, but is not limited to, the following:-

 

 

1. The original signed, executed credit agreement and any terms and conditions that applied to the account at the time of default and at the time the account was opened.

 

2. Transcriptions of all telephone conversations recorded and any notes made in relation to telephone conversations by your company, or by any previous creditor

 

3. Where there has been any event in my account history over this period which has required manual intervention by any person, I require disclosure of any indication or notes which have either caused or resulted in that manual intervention, or other evidence of that manual intervention in relation to my account formerly held with ORIGINAL CREDITOR.

 

4. True copies of any notice of assignment and/or default notice or enforcement notice that you or the original creditor sent me, with a copy of any proof of postage that you hold.

 

5. Documents relating to any insurance added to the account, including the insurance contract and terms and conditions, date it was added and deleted (if applicable).

 

6. Details of any collection charges added to the account; specifically, the date it was levied, the amount of the charge, a detailed financial breakdown of how the charge was calculated, and what the charge covers.

 

7. Specific details of the fees/charges levied by any other agency in respect of this account and a detailed breakdown of said fees/charges and what each charge relates to and on what date said fees/charges were levied.

 

8. A genuine copy of any notice of fair use of my data as required by the Data Protection Act 1998

 

9. A list of third party agencies to whom you have disclosed my personal data and a summary of the nature of the information you have disclosed.

 

10. Copies of statements for the entire duration of the credit agreement.

 

 

I enclose the statutory maximum fee of £10. You have 40 days in which to comply.

 

If there is specific information which you require in order to satisfy yourself as to my identity, please let me know by return. However, please note that the above address is the one which you normally use to communicate my private business to me and which you have hitherto found to be acceptable.

 

Yours faithfully,

 

 

 

print but don't sign your name

 

 

 

 

 

 

 

[unclebulgaria67]

 

Correct me if i'm wrong but don't all banks seek a County Court Judgement when a loan is not paid? Not automatic. They probably have so many accounts in default at anyone time, they would constantly be submitting claims.

 

Given the amount i'm sure they would of sought a County Court Judgement and this would of shown on Experian. If they issued a default notice, then yes I would have expected it to have appeared. If not on there, may be a mistake that default never registered or 6 years have passed.

 

Then maybe the Limitation Act does apply and they are bluffing..... They wound not admit if statute barred. If BOS have provided incorrect/unclear information, then CapQuest may be proceeding on a false basis.

[kathleenbilly]

Capquest relied saying the account was opened on the 25/10/04 there letter was brief.

 

so not statute barred, in simple terms i could just sit it out for a few months and then it will be statute barred according to there own information to me.

 

I still think there are bluffing they are well know for buying debts older than 6 years.

 

The fact the debt is not shown on Experian is a good sign if not on Equifax which i will see in the next fews days then clearly it's passed the 6 year date,

 

Thats my guess could have this rapped up by next week. It's for them to prove the debt is owing or not statue barred as they say by providing me the information to prove it ie: the credit agreement i don't see why i need to do anymore at this stage until i see what they have first, (maybe nothing)

[unclebulgaria67]

It is up to you. But Capquest have been known to suddenly issue a statutory demand with a view to applying for bankruptcy. This can lead to a mad rush to get hold of information to support defending this action.

 

Your friend would be wise to submit the subject access request to BOS, to get hold of all the information. Atleast then they can use the information to help them prepare and maybe if the details help, tell them to get lost.

 

Don't be worried about BOS advising CapQuest of the SAR. They won't, as they receive the requests on a daily basis and as they take awhile to get done, they just get on with it. They haven''t got the time to find out what is happening with the debt and to start making phone calls. This is not their job function anyway, in the compliance dept where these requests are handled.

[kathleenbilly]

Mmmm,

 

i hear you and to be fair he has just in the last year brought a house,

 

So maybe i will seek the information so long as it does not have any detrimental effect or be passed to Capquest in any way then it would be a positive move.

 

thank you for the advice on that.

[unclebulgaria67]

The SAR request is specifically to BOS, so this is about data they have controlled, nothing to do with anyone else.

[kathleenbilly]

So i need to find who issued the loan ie: the particular branch of the bank of Scotland,

 

And make the postal order payable to,

 

Halifax Bank of Scotland

 

is this correct?

 

thanks i will have this out for Monday

[unclebulgaria67]

It will the address shown on the BOS loan details, not the individual branch that dealt with the application. I think this is Bank of Scotland

PO Box 23581

Edinburgh

EH1 1WH

 

Postal order can be made payable to Bank of Scotland.

[kathleenbilly]

OK right i see thank you.

 

I will request this information from them on Monday sending the letter in the post.

 

I will report back and let you know the outcome, in the meantime many thanks again for your time and advice on this.

[harrassed senior]

Hopefully as you say there is no CCJ, this would have fallen off the credit files after 6 years, but would still be valid.

 

If you want to check up on that you can do so online and it costs, I believe £8:

 

CCJs, court orders & fines - Search yourself and others - Trust Online

[kathleenbilly]

Yes it's not on Experian,

 

So i doubt it will be on Equifax.

 

But i will check and confirm this in the next few days.

 

If it is not then it has never been issued or has fallen off due to being over 6 years old.

 

Yes it is still valid and you will always owe the amount but given the limitation act it can no longer be recovered if 6 years with no acknowledge has been made to pay or confirm the debt.

[kathleenbilly]

Capquest Bluff....

 

 

I have just be able to check the Equifax Credit File and have found no trace or details of any loan mentioned by Capquest.

 

So no details on Experian and now nothing on Equifax.

 

So clearly the loan default has passed the 6 years.

 

The interesting part i would ask you if your looking in,

 

Capquest wrote back to me after i sent them a Limitations Act Letter afew day ago saying the debt was not statue Barred and that the account was opened on the 25th October 2004....

 

If that's when it was opened then the non-payment and subsequent default of not paying the loan would of been even later than the opening of the account so this would be well within the 6 years but it's not on the credit files of Equifax/Experian.

 

So now i have this information off my friends file i would like to call them stating i know nothing of this debt given i have checked my file etc.

 

I would then ask them to provide me with evidence of a debt to which i do not acknowledge or have any details of.

 

Would this is a good idea or should i write another letter if so what letter would be suitable?

[Seminole]

One thing you need to look at is whether your friend has moved in the past 6 years ago and whether the credit files have picked up everything from each address.

 

The only way to be sure that he doesn't have a CCJ is by using the Registry Trust website to check every address he's lived at over the past 6-7 years. This isn't cheap (£8 per search) and it wouldn't pick up a CCJ older than 6 years.

 

As others have suggested SARNing BOS and using the CCA should give you all the information you need. Does your friend have bank statements from that period?

[kathleenbilly]

Yes he has moved two times within 6 years and the loan was taken out at a particular address a point to note: he has said he did see this loan on his file a couple of years ago but clearly now it has gone,

 

I'm going to send this letter to Capquest below and see what they have got...

 

No debt is acknowledged to you. You have contacted me regarding the account with the above reference number, which you claim is owed by myself.

I would point out that under the Limitation Act 1980 Section 5 “an action founded on simple contract shall not be brought after the expiration of six years from the date on which the cause of action accrued.” If your telephone calls continue,they will be taken as HARRASSMENT under PROTECTION FROM HARASSMENT ACT 1997. This is a CRIMINAL Act which can lead to 6 months imprisonment and/or a level 5 fine. I shall therefore report you personally to the police.

The last payment or acknowledgement of this debt was made over six years ago and no further acknowledgement or payment has been made since that time. Unless you can provide evidence of payment or written contact from me in the relevant period under Section 5 of the Limitation Act, I suggest that you are no longer able to take any court action against me to recover the alleged amount claimed.

I await your written confirmation that no further contact will be made concerning the above account and confirmation that this matter is now closed. If you do not supply such confirmation, I will be making a complaint to the statutory authorities.

I look forward to your reply.

[Ell-enn]

Any letters you send to them should be by recorded delivery, otherwise they might say they didn't get it

Keep a copy of the letter and check on the royalmail website a few days later to print off the signed for receipt - keep that with your copy of the letter in case you need to prove they received it.

[kathleenbilly]

Your right,

 

The first letter i sent was just normal post (Limitation Act Letter) they did reply within 7 days this time as it's getting a bit more heavy i better send recorded. thanks

[Pinky69]

It's a pity you don't have all the facts of the account at your fingertips. It may well be SB'd but if it isn't CQ issue Statutory Demands like confetti.

[kathleenbilly]

This really is a strange one,

 

My friend has found and now given me all the original paperwork and the credit agreement.

 

The date Capquest gave is correct 25th October 2004 is when the credit agreement was signed although i have the customer copy which does not have his signature on but has the signature of the bank on there.

 

So it's within the 6 years by a few months. So the limitation act does not apply.

 

Strange how there is no detail or record on his credit files no defaults no CCJ's we talking a 25,000 debt weird, the guy got a morgage last year with no issues at all.

 

So i know Capquest don't have the credit agreement as they would of said or at least sent me a copy to prove it. So i will write requesting confirmation and proof of the debt unless anyone has any other idea's on how best approach this?

[fuzzybobble]

Best to throw it in dispute regarding the CCA, drag it out until 25th October (very easily done) Then hit them with the Statue Barred letter.

[Pinky69]

Remember too that you have to take account of any payments he made. The SB start date is the date of the last payment. I agree you should request proof of debt.

[kathleenbilly]

Yes i can see his payments he made two or three monthly then defaulted so this would take us into March 2005

 

These payments were made by direct debit but i doubt they will have that information (again no details or record on his credit files????)

 

I will send them this letter below is this the one you are talking about?

 

Dear Sir/Madam

 

Re:− Reference Number 31122233

 

This letter is a formal request pursuant to s.77/78 of the Consumer Credit Act 1974. I require you to provide me with a true copy of the credit agreement relating to the above account, together with any other documentation the Act requires you to provide.

 

I expect you to comply fully and properly with this request, within the statutory time limit. You are reminded that should you fail to comply with my request, the provisions of s.77 will apply.

 

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

 

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection From Unfair Trading Regulations 2008 (CPUTR).

 

I enclose a postal order in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose.

 

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee.

 

We look forward to hearing from you.

 

 

Yours faithfully

[kathleenbilly]

Best to throw it in dispute regarding the CCA, drag it out until 25th October (very easily done) Then hit them with the Statue Barred letter.

 

 

How can i drag this out? any advice on this appreciated...''