Cap1 & CCA return

[un1boy]

I had a phone call today from Wirral trading standards regarding crapital 1 sending me just a copy of terms & conditions. She said I was correct that they havent satisfied s78 and is still unenforceable and to write back stating this.

 

It basically boils down to me taking them to court and getting a judge to make a ruling. She said after I have taken them to court and get a result TS will refer it to the OFT to consider taking action. She said there is nothing she can do. There is no point to TS.

 

I was wondering how a judge would act if I just go straight to the courts without continuing to write backwards and forwards on the basis that I want something done about the s78 offence to start with then move on to the unenforceability. I mean is the judge likely to feel that I havent exhausted all my avenues to resolve this. And if they then show a valid agreement would I be liable for costs? Also has anyone here taken anyone to court for defaulting on the CCA yet and had a result of a fine or imprisonment?

 

Craig.

 

I think you should at least send them a letter for before action, give them 14 days and then take them to court - do it properly!!

[un1boy]

Shooter

Are they in criminal default yet & if so have you considered applying to a magistrates court for a summons?

 

You will need to have proof of delivery, the cashing of the statutory payment etc & copies of any post request communications which either doesn't or does allude to your request

 

JonChris, can you ellaborate please?

[un1boy]

In Fact every single creditor of mine has committed the offence by even failing to reply within the time period. Im wondering werther to skip TS all together and just go straight to the courts the second the offence is committed. Surely the offence alone is enough to start with.

 

Craig.

 

I'm in exactly the same position and don't even bother with TS Anymore - I've got one of mine being dealt with by them, but the guys seems to always be on holiday so nothing gets done!!

[MoonHawk]

In my case with AK, my local TS (Northampton) seemed that they wanted to investigate AK and told me they are known for buying statute barred debts and acting as if the law does not apply to them because they are not primarily based in the UK. But I was told it is up to Chester TS to do something but that they might just put the file on hold until they have enough complaints? How many is enough?

 

Not a peep from Chester TS a week or so on. So I started a thread to encourage complaints to Chester TS (thanks for the support Conar), becuase if we know there has been an X number of complaints, we can then place a complaint about Chester TS for not acting.

 

Have you sent a CCA request to Aktiv Kapital?

 

Best Wishes

MoonHawk

[shooter001]

I think you should at least send them a letter for before action, give them 14 days and then take them to court - do it properly!!

 

Is the 14 days a legal rule? This is the last letter i sent them:

Dear sir or madam

 

Request for true copy of Credit Agreement under Sections 77/78 of the Consumer Credit Act 1974

 

I wrote to you recently requesting a true, signed copy of any credit agreement that exists in relation to the above account. This is my right under Sections 77 and 78 of the Consumer Credit Act 1974 on payment of the statutory fee of £1.00. This payment was included with my original request.

 

Under the terms of the above Act, a creditor has 12 working days to provide the requested document. Should they fail to do this, they have a further calendar month to rectify this default. Failure to comply within these timescales is a criminal offence.

 

Both of these deadlines have now passed and after the offence I have not received a copy of any agreements. This can lead me to only one conclusion, that being that no signed credit agreement exists in relation to this account.

 

As I am sure you are aware, an agreement that does not contain all of the prescribed terms, and/or is not signed by the debtor, is completely unenforceable, even in a court of law. This will be a complete defence to any court action that you may consider taking.

 

Please note, you may also consider this letter 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 the credit reference agencies.

 

There has never been any regulated agreement in relation to this account, and therefore you have never had my consent to process my data. I also do not see how you can state that you have a legitimate interest in processing my data as we have never had any contract that would enable you to do this.

 

Be warned, the CCA 1974 is clear that a default can only be issued for breach of a valid, regulated agreement. If there is no agreement, as in this case, then you cannot issue a default as I have not breached any valid, regulated agreement.

 

resolve this matter I expect the account to hold a zero balance. Failure to resolve these issues within this time period will leave me no other choice but to report any possible Criminal activities to the Office of Fair Trading, The Information Commissioner, Trading Standards, Merseyside Police and Watchdog for investigation

 

I look forward to your final decision on this complaint for settlement within 14 days. This should include your proposed actions in relation to the lack of a credit agreement

 

Yours faithfully

 

 

 

 

 

 

 

They replied to this with the terms & conditions only. Do you think I should write back and say it isn't good enough and give them another 14 days? Bearing in mind the offence should be enough in itself to complain to a judge about.

 

Craig

[un1boy]

Is the 14 days a legal rule? This is the last letter i sent them:

Dear sir or madam

 

Request for true copy of Credit Agreement under Sections 77/78 of the Consumer Credit Act 1974

 

I wrote to you recently requesting a true, signed copy of any credit agreement that exists in relation to the above account. This is my right under Sections 77 and 78 of the Consumer Credit Act 1974 on payment of the statutory fee of £1.00. This payment was included with my original request.

 

Under the terms of the above Act, a creditor has 12 working days to provide the requested document. Should they fail to do this, they have a further calendar month to rectify this default. Failure to comply within these timescales is a criminal offence.

 

Both of these deadlines have now passed and after the offence I have not received a copy of any agreements. This can lead me to only one conclusion, that being that no signed credit agreement exists in relation to this account.

 

As I am sure you are aware, an agreement that does not contain all of the prescribed terms, and/or is not signed by the debtor, is completely unenforceable, even in a court of law. This will be a complete defence to any court action that you may consider taking.

 

Please note, you may also consider this letter 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 the credit reference agencies.

 

There has never been any regulated agreement in relation to this account, and therefore you have never had my consent to process my data. I also do not see how you can state that you have a legitimate interest in processing my data as we have never had any contract that would enable you to do this.

 

Be warned, the CCA 1974 is clear that a default can only be issued for breach of a valid, regulated agreement. If there is no agreement, as in this case, then you cannot issue a default as I have not breached any valid, regulated agreement.

 

resolve this matter I expect the account to hold a zero balance. Failure to resolve these issues within this time period will leave me no other choice but to report any possible Criminal activities to the Office of Fair Trading, The Information Commissioner, Trading Standards, Merseyside Police and Watchdog for investigation

 

I look forward to your final decision on this complaint for settlement within 14 days. This should include your proposed actions in relation to the lack of a credit agreement

 

Yours faithfully

 

 

 

 

 

 

 

They replied to this with the terms & conditions only. Do you think I should write back and say it isn't good enough and give them another 14 days? Bearing in mind the offence should be enough in itself to complain to a judge about.

 

Craig

 

You should give them notice of intended legal action - you could give them 7 days.

[paulwlton]

Received a letter today from the chief executive of the OFT outlining sec 77.

 

The lender may recreate a document from records to comply with the Act.

I will post the letter in Peter B's thread relating to OFT letters etc.

 

Paul

[out of cash]

thats got to be a load of crap surely do they have lots of lunches together when are the so called legal bodies going to kick their back sides?this may show that they have complied but this would not win a court case at least i would hope not

[jamesbond]

unfortunately it appears that the money boys have got just a little to much pull....

it appalls me that the constitutions that are supposedly there to defend the rights of the consumer are railroaded into submission and us the poor consumers are once again made to pay the price, at whatever personal cost to ourselves....

[ncf355]

Received a letter today from the chief executive of the OFT outlining sec 77.

 

The lender may recreate a document from records to comply with the Act.

I will post the letter in Peter B's thread relating to OFT letters etc.

 

Paul

 

Paul,

 

you need to give up on this lot

 

The only way you will get a satisfactory response is via the courts

 

That info from the OFT totally contardicts what theyve emailed me in the past:

 

And I quote:

 

" However, the copy must be a copy. It need not be exact on immaterial points, but it cannot be a conjectured reconstruction. "

 

Which if you look is the complete opposite to what you have been told

 

But more to the point I have been told in court that the only way they will satisfy requirements there is via the original documents

 

 

 

[andrew1]

 

Paul,

 

you need to give up on this lot

 

The only way you will get a satisfactory response is via the courts

 

That info from the OFT totally contardicts what theyve emailed me in the past:

 

And I quote:

 

" However, the copy must be a copy. It need not be exact on immaterial points, but it cannot be a conjectured reconstruction. "

 

Which if you look is the complete opposite to what you have been told

 

But more to the point I have been told in court that the only way they will satisfy requirements there is via the original documents

 

 

 

 

 

I must agree I'm afraid Paul,

 

If you look at some of the work being done on dca's via the courts, the way we get them every time is by asking for a copy of the original agreement. Most of the time they don't have them or can't get them from the OC - simple - it gets thrown out. Keep it simple. No CCA - No contest

[Jeff2000]

I must agree I'm afraid Paul,

 

If you look at some of the work being done on dca's via the courts, the way we get them every time is by asking for a copy of the original agreement. Most of the time they don't have them or can't get them from the OC - simple - it gets thrown out. Keep it simple. No CCA - No contest

 

 

Agree 100%!!!

 

 

It doesn't really matter what they send you in reply to your CCA request!

 

It's what is produced in court that ultimately matters!

 

"A direction to bring original documents in all cases will be made". (p91 small claims procedure: A practical guide by Patricia Pearl).

 

Hope this helps a bit.

 

 

Regards, Jeff.

[TideTurner]

The OFT must not be seen to be buckling here. Either they are an ombudsman or they aren't. If, as the banks claim, they have no powers to bring an action, I for one have been misled for years. It appears that a very great wrong has come to light, and there isn't a single ombudsman who is prepared to stand up against it.

 

I always thought that that is what they were there for in the first place. Especially the FSA, who we now find are, and have always been funded by the banks.

 

Any deals done should be scrutinised, and placed before an independent body, specifically set up to deal with this crisis, because the current parties all have something to lose by being impartial, the banks because they have abused their position, and the ombudsmen because they have spent their entire existence monitoring the position from planet Pluto and have done nothing to protect the comsumer. This has happened in front of their very eyes, and they will never receive as much evidence on any other subject as they have received. Are you frightened of these organisations?

 

DO NOT back out on us now. We will be all over you like a rash (previous years accounts and accountability etc). The OFT must do what is right and be impartial, else it will undermine everything else it stands for.

 

Tide

[JonCris]

I think much of the confusion surrounds the interchangeable use of the terms – Conjecture & Reconstruction & I think it will help if they are defined in the context used

 

Conjecture A Noun

 

ORIGIN Latin conjectura, from conicere ‘put together in thought’.

 

To conjecture a noun an opinion or conclusion based on incomplete information; a guess - & it's this you can't do in order to comply with a CCA request - unless your conjecture is a complete & true reflection of the information as per the original agreement.

 

The term “must not be a conjectured agreement” assumes that it is & there is a risk that it could be incomplete

 

Reconstruct

This above term ‘reconstruct’ differs to ‘conjecture’ & it’s this ‘reconstruction’ that is permitted but again the information provided must be a true reflection of that on the original agreement - it can't be a guess unless it's correct in every required detail

 

In any case whilst they might be able to comply with their CCA obligations without a true properly executed 'signed' agreement the debt cannot be enforced without one

[Goldlady]

A new dictionary definition needs to be added:

 

'doing a Blue Peter'

 

I would love one of them to copy my amended signature onto an agreement.

[paulwlton]

 

Paul,

 

you need to give up on this lot

 

The only way you will get a satisfactory response is via the courts

 

That info from the OFT totally contardicts what theyve emailed me in the past:

 

And I quote:

 

" However, the copy must be a copy. It need not be exact on immaterial points, but it cannot be a conjectured reconstruction. "

 

Which if you look is the complete opposite to what you have been told

 

But more to the point I have been told in court that the only way they will satisfy requirements there is via the original documents

 

No it cannot be conjectered but it can be constituted according to the OFT. This is the OFTs view a court may take a different view

 

 

[paulwlton]

Agree 100%!!!

 

 

It doesn't really matter what they send you in reply to your CCA request!

 

It's what is produced in court that ultimately matters!

 

"A direction to bring original documents in all cases will be made". (p91 small claims procedure: A practical guide by Patricia Pearl).

 

Hope this helps a bit.

 

 

Regards, Jeff.

 

I disagree it does matter what they send you if a creditor sends you a constituted document from records even though the original is lost then he has complied with the Act and he is able to enforce the agreement, even though a court is precluded from making an enforcement order.

 

I know of an High Street bank that has enforced £250.000. of debt this way.

 

Paul

[noomill060]

Bit of a waste of time if a court is precluded from making an enforcement order though?

 

Whats it going to do, knock their bins over every night until they pay up?

[paulwlton]

Bit of a waste of time if a court is precluded from making an enforcement order though?

 

Whats it going to do, knock their bins over every night until they pay up?

 

LOST CCA AGREEMENTS

 

When a creditor supplies a debtor with a reconstructed agreement it's 'assumed' by the debtor that they have constructed it from the original.

 

Whilst not unlawful, they rely on our ignorance to make us think that they have a properly executed 'signed' agreement when in fact they don't.

 

The debtor then continues to honour his monthly payments towards a debt that's unenforceable.

 

Paul

[ian1969uk]

Absolutely right, they will try anything.

 

The fact remains that without the ACTUAL document that the debtor signed, they can't enforce in court. All of these companies that scanned/microfiched, or whatever, the original document and then disposed of it have been very stupid.

[TideTurner]

Absolutely right, they will try anything.

 

The fact remains that without the ACTUAL document that the debtor signed, they can't enforce in court. All of these companies that scanned/microfiched, or whatever, the original document and then disposed of it have been very stupid.

 

Not just stupid. It is the creditors responsibility to draw up the agreement, present the agreement, to accept any offer made and provide any service offered according to the terms of the agreement.

 

Where any action is taken for enforcement, a true copy must be provided on request however the original must also be provided in Court.

 

Else, you have never put your 'mark' on anything.

 

Gross negligence by the banks I think.

 

Tide

[paulwlton]

Contents of a leaked internal document of an High street bank date June 07.

 

Recreating lost CCA Agreements.

 

Under current legislation a Customer can request a "true copy" of their CCA Agreement - failure to do so within 12 days could lead to difficulty enforcing the agreement and more worrying if we fail to do so within 30 days the bank is breaking the law.

 

On occasion the CCA Agreement cannot be found quickly and in the past this led to the debt being written off. On identifying this problem ------- -------- introduced a new process whereby if the CCA cannot be found quickly ----- is able to create a "true copy" using data keyed at the time the loan was granted and the "style" of the agreement used at that time- this can go back a number of years.

 

65 agreements have been recreated so far involving £250k of debt.

 

A classic example of thinking under pressure and adding real value to the bottom line.

 

I would just add that i am one of those 65 but unfortunatley for the bank i already had in my possession the carbon copy of the original.

 

Paul

[out of cash]

hi paulwlton

 

barclaycard seem to have done this with me produced a 25 year old one but the SAR i sent them said they only hold 6 years information relevant to my account?????i do believe they have constructed this agreement as it took nearly 5 mths to find it.

 

regards

 

out of cash

[ian1969uk]

Does it have your signature on it?

[paulwlton]

hi paulwlton

 

barclaycard seem to have done this with me produced a 25 year old one but the SAR i sent them said they only hold 6 years information relevant to my account?????i do believe they have constructed this agreement as it took nearly 5 mths to find it.

 

regards

 

out of cash

 

The banks reacreate the agreement then hide behind the 1983 regs that allow then to omitt sigs etc, to the debtor, it appears the bank has the original.

 

Paul