Cap1 & CCA return

[car2403]

Hi Chris, thanks for those pointers. I have received a letter today from MINT which says -

 

'In terms of CCA copy document regulations, the 'true' copy requirement can be satisfied by providing a copy agreement at the date the card agreement was made and providing a copy of the current terms of the card agreement.'

 

Surely this is not sufficient. I seem to have read this in previous posts but I would be grateful if you would confirm that it is indeed the case.

 

Thanks in anticipation.

 

They seem to be playing games with you, IMHO.

 

They have complied with your request for documentation with what they have supplied.

 

The next step is to send them a letter simply saying;

 

"Please confirm that you have, in your possession, a credit agreement that is in all ways fully compliant with the Consumer Credit At 1974, as amended, and the subsequent regulations made there under.

 

For the avoidance of doubt, if you are in possession of such a document, but are unable to supply me with a true copy of it, please outline your reasons why you feel you are unable to supply it to me in your reply.

 

Yours faithfully"

 

If they have it, they have to say they have it. If they don't have it, but say they do, or they don't have it, we'll deal with that when they reply - at which point you'd be well advised to start a new thread of your own. There's some guidance in my signature if you're unsure how.

[SB100]

If you have a moment could you have a look at this please- along similar lines to the above.

 

http://www.consumeractiongroup.co.uk/forum/capital-one/190758-no-signed-agreement-cca.html

 

Thanks

[car2403]

Just say I am been taken to Court and the Claimant could not find the DN notice.

 

Would it be possible to Counterclaim for damages for putting a default on my Credit file. Also is this done on an application notice to the Court

 

HAK

 

No.

 

Missing Default Notice = unlawful enforcement = Court should dismiss the claim.

 

If the DN is missing, what is to stop them reissuing another, then continuing with the claim, for example?

 

What you need is an unenforceable agreement, which, according to the ICO, throws doubt on the validity of the CRA data shared.

 

Unenforceable agreement = inaccurate CRA data = removal (oh and you also avoid enforcement!)

[Having_A_Knightmare]

If the DN is missing, what is to stop them reissuing another, then continuing with the claim, for example?

 

Good point that Car but what about the 3 years the old ones been on my credit file stopping me from getting credit.

[car2403]

Good point that Car but what about the 3 years the old ones been on my credit file stopping me from getting credit.

 

Well, it isn't the Default Notice that is stopping you getting credit, it's the account in default that is. The payment history is in default, even without a Default Notice, which is what lenders look for.

 

The issue is enforceability of the agreement, HAK - if it's irrevocably unenforceable under s.127(3) you can have the Default removed and seek recovery of damages. If it isn't, you'd really struggle, IMHO. (By the way, I don't think recovery of damages is possible - I certainly have never been awarded any, despite putting the arguments forward, as the Judges have seen write down of the OS balance as "enough benefit", rather than awarding damages)

[Having_A_Knightmare]

Cheers Chris

 

Should be OK as agreement has no perscribed terms. Just wanted something else to p**s them off with:D

 

HAK

[SB100]

So, would one have to issue proceedings against the creditor to have the 'agreement' (or lack of it) deemed unenforceable in order to have the CRA's remove the damaging data?

[basa48]

So, would one have to issue proceedings against the creditor to have the 'agreement' (or lack of it) deemed unenforceable in order to have the CRA's remove the damaging data?

 

Damn, and that's just what I was about to ask. :grin:

 

Also which is the best vehicle, small claims or part 8. And which clause 142(1) or 127(3).

 

Note 142(1) states “the court may if it thinks....” whereas 127(3) states “The court shall not......”

[citizenB]

SB and basa, the link below will take you to the thread of a CAGer who did just that. All the information you need to take the company to court is in her thread. YOu will not be able to post and ask questions as the thread is now closed. So if you need help, then ask the questions on your threads.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/115280-useful-information.html

 

HTH

[scrible]

Well everybody thank you so much for your help up to now, just a very quick question is the following an agreement or an application?

 

mint qmk.pdf

 

All comments appreciated.

[SB100]

Thanks CitizenB, much appreciated. I'll initially respond as suggested my car on the thread I mentioned earlier, then initiate proceedings if necessary

[Viscount Stair]

Well everybody thank you so much for your help up to now, just a very quick question is the following an agreement or an application?

 

[ATTACH]7287[/ATTACH]

 

All comments appreciated.

It doesn't look like an enforceable agreement to me but was there anything on the back of this?

[SB100]

There certainly doesn't seem to be anything on the 'front' of it to suggest there's anything on the 'back' although I bet that's what they'll try to imply.

 

What's everyone's thoughts on the cancellation box- I'm sure this can't be sufficient; they could easily wait until after the 'short time to cancel' before they send the information required to cancel- if thy send it at all. I suspect they'd have a hard time proving you'd have everything you'd require if you wish to cancel.

 

Whether this is any good in a legal argument I have no idea though.

[car2403]

So, would one have to issue proceedings against the creditor to have the 'agreement' (or lack of it) deemed unenforceable in order to have the CRA's remove the damaging data?

 

Probably, for the reasons I mentioned here some time ago;

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/111211-defaults-background-removal-methods.html

 

Basically, in the past, the ICO hasn't considered agreements unenforceable under s.127(3) as sufficient grounds to remove CRA data - that seemed to change at one point, (as shown on the thread linked here) but I haven't seen any follow up. (Mainly because I don't believe in using the ICO, so don't recommend that as the way to go)

 

Going to Court seems to be more consistent in achieving CRA data removal. Just check my threads, if you need proof of that...

 

Damn, and that's just what I was about to ask. :grin:

 

Also which is the best vehicle, small claims or part 8. And which clause 142(1) or 127(3).

 

Note 142(1) states “the court may if it thinks....” whereas 127(3) states “The court shall not......”

 

Which procedure depends on whether you're seeking damangs - if you are, it's Part 7 (where allocation to track will depend on the amount being claimed) and if not, it's the Part 8 procedure.

 

In effect, you are applying to the Court for an order declaring the parties rights (outlining the unenforceability of the agreement against the debtor) under s.142(1), based on s.127(3).

 

If the debt wasn't irrevocably unenforceable under s.127(3), making an application under s.142(1) would be suicide, as the Court would allow enforcement under s.127(1)(i) if the agreement is signed by the debtor and therefore not in the remit of s.127(3). So, the use of s.142(1) should only be considered where a CCA request has been made and the agreement sent falls in to s. 127(3) - meaning applications like this shouldn't be entered in to lightly.

[lexis200]

Well, it isn't the Default Notice that is stopping you getting credit, it's the account in default that is. The payment history is in default, even without a Default Notice, which is what lenders look for.

 

The issue is enforceability of the agreement, HAK - if it's irrevocably unenforceable under s.127(3) you can have the Default removed and seek recovery of damages. If it isn't, you'd really struggle, IMHO. (By the way, I don't think recovery of damages is possible - I certainly have never been awarded any, despite putting the arguments forward, as the Judges have seen write down of the OS balance as "enough benefit", rather than awarding damages)

 

I'm struggling to understand how these two things are separate. All the letters I have received have threatened me with a Default Notice, and if I don't remedy then they will place a default marker on my credit file.

 

If they are not one and the same, what is the difference, and why do we all get stressed about getting the DN declared unlawful etc in order to remove the default markers, if the markers are a separate entity and will be placed with or without a Default Notice being served?

 

I'm very confused:confused: Could you possibly try and explain it for me in very simple terms please (think Homer simple here - I've not been getting much sleep lately and I'm not processing stuff with any great speed or dexterity at the moment.)

 

Lexis:)

[basa48]

Which procedure depends on whether you're seeking damangs - if you are, it's Part 7 (where allocation to track will depend on the amount being claimed) and if not, it's the Part 8 procedure.

 

In effect, you are applying to the Court for an order declaring the parties rights (outlining the unenforceability of the agreement against the debtor) under s.142(1), based on s.127(3).

 

If the debt wasn't irrevocably unenforceable under s.127(3), making an application under s.142(1) would be suicide, as the Court would allow enforcement under s.127(1)(i) if the agreement is signed by the debtor and therefore not in the remit of s.127(3). So, the use of s.142(1) should only be considered where a CCA request has been made and the agreement sent falls in to s. 127(3) - meaning applications like this shouldn't be entered in to lightly.

 

I'm utterly (well nearly ) convinced my 2002 Egg Card agreement is legally unenforceable. Whether a judge would agree is the risk element here. So your answer is just what I was looking for. I didn't grasp that 142(1) could be based on 127(3).

 

Can I include a request to the courts to rectify my credit file (s14 DPA) in the same application?

 

Then there is the question of Egg's unlawful? recission of contract letter (otherwise known as the 'termination' letter).

[car2403]

I'm struggling to understand how these two things are separate. All the letters I have received have threatened me with a Default Notice, and if I don't remedy then they will place a default marker on my credit file.

 

If they are not one and the same, what is the difference, and why do we all get stressed about getting the DN declared unlawful etc in order to remove the default markers, if the markers are a separate entity and will be placed with or without a Default Notice being served?

 

I'm very confused:confused: Could you possibly try and explain it for me in very simple terms please (think Homer simple here - I've not been getting much sleep lately and I'm not processing stuff with any great speed or dexterity at the moment.)

 

Lexis:)

 

It is difficult to get your head around, Lexis. The easiest way would be with an example;

 

Say I want to enter in to an agreement with you (CCA regulated, but we'll take that for granted in this example) as a debtor wanting to purchase a BMW (other makes of car are available) using a personal loan and I agree to pay you £100 a month for 48 months. The agreement then (forget prescribed terms - for now) exists between debtor/creditor to pay £100 per month for 48 months.

 

If I miss a payment, you record this against my credit file as a missed monthly payment - "1" in arrears on my CRA file.

 

If I make the next monthly payment on time, but don't make up the arrears, you record that too - "1" in arrears for 2 months. (This shows up as "1100000..." on my CRA file.

 

I now apply for a contract mobile phone with O2. (Other networks are available) They decline me, because of my poor payment record with you - note, at this point, you haven't "Defaulted" me on my CRA file - yet!

 

Lets say I do that again next month. At this point, you send me a Default Notice, if I don't clear arrears in 14 days, you'll terminate the agreement and seek recovery of the full outstanding balance. (It's a personal loan, not a HP agreement, for the sake of having an easy to understand example)

 

I don't clear the arrears in time, so you terminate and start Court proceedings to claim the balance, after recording a Default on my CRA file. I defend and you can't supply an agreement that is properly executed;

 

Here, 1 of 2 things can happen;

 

A) Agreement irrevocably unenforceable; (s.127(3) applies)

 

At this point, I can challenge the Default entry recorded, as you haven't complied with the CCA in entering the agreement. The Court will likely rule in my favour, if you don't have a signed agreement. The debt is ruled unenforceable and you write off my remaining balance. As the debt is irrevocably unenforceable (s.127(3) applies) you are also ordered to remove the CRA Default and payment history record - I have never been under an obligation to repay you since entering the agreement.

 

B) Agreement improperly executed, but has my signature; (s.127(1)(i) applies)

 

At this point, I can challenge the Default entry recorded, as you haven't complied with the CCA in entering the agreement. The Court will likely rule in your favour, if you do have a signed agreement. The debt is ruled enforceable I get a CCJ, which I have to repay to you.

 

Conclusion;

 

In both situations, I have been negatively effected by negative payment history (default payment history) plus having a Default (a Default entry once the agreement is terminated) entry on my CRA file.

 

If I didn't know I needed to challenge the payment history under the DPA in situation A, it's likely the Court will still reach it's conclusion, but the negative data (payment history) wouldn't be challenged - I still couldn't get a contract with O2, as a result, despite the Default being removed!

 

The difference is that default (note the lowercase "d") payment history represents the actual payment history of the account, but a Default (note the uppercase "D") entry may have a more severe effect on my credit score. The process of recording of default payment history is different to the process needed for Defaulting an agreement under the CCA - even though default payments usually result in Defaults being recorded.

 

HTH?

[car2403]

I'm utterly (well nearly ) convinced my 2002 Egg Card agreement is legally unenforceable.

 

That seems likely, in my experience.

 

Whether a judge would agree is the risk element here.

 

Well, this is sort of my point - it isn't open to interpretation if s.127(3) applies. (Albeit you may get a numpty Judge and find yourself seeking grounds to appeal because he gets it wrong!)

 

Can I include a request to the courts to rectify my credit file (s14 DPA) in the same application?

 

Absolutely.

 

Then there is the question of Egg's unlawful? recission of contract letter (otherwise known as the 'termination' letter).

 

Yes, that is another question... I won't cover that here, though, as it may confuse others even more...

[lexis200]

You're a star:)

 

I get it I think (with a little 'woohoo' sounding in my head:D).

 

The default on the credit file doesn't mean a Default, it just means a dodgy payment history (1,2,3,4 etc showing on record). At the point they issue a Default Notice and I don't remedy it, they can now enter that bit fat 'D' on my record, however they can't do this bit if they haven't sent the DN.

 

So, they can default (mark the arrears) on an account as soon as you miss or are late with a payment, but they can't Default it (mark it as 'D') until they send you a notice that you don't remedy.

 

In this scenario then, when, as I have had on at least one account that I can see, they enter a 'D' some weeks before selling on an account and issuing me with a Default on my file, they have been a tad naughty.

 

Is that about right?

 

Lexis:)

It is difficult to get your head around, Lexis. The easiest way would be with an example;

 

Say I want to enter in to an agreement with you (CCA regulated, but we'll take that for granted in this example) as a debtor wanting to purchase a BMW (other makes of car are available) using a personal loan and I agree to pay you £100 a month for 48 months. The agreement then (forget prescribed terms - for now) exists between debtor/creditor to pay £100 per month for 48 months.

 

If I miss a payment, you record this against my credit file as a missed monthly payment - "1" in arrears on my CRA file.

 

If I make the next monthly payment on time, but don't make up the arrears, you record that too - "1" in arrears for 2 months. (This shows up as "1100000..." on my CRA file.

 

I now apply for a contract mobile phone with O2. (Other networks are available) They decline me, because of my poor payment record with you - note, at this point, you haven't "Defaulted" me on my CRA file - yet!

 

Lets say I do that again next month. At this point, you send me a Default Notice, if I don't clear arrears in 14 days, you'll terminate the agreement and seek recovery of the full outstanding balance. (It's a personal loan, not a HP agreement, for the sake of having an easy to understand example)

 

I don't clear the arrears in time, so you terminate and start Court proceedings to claim the balance, after recording a Default on my CRA file. I defend and you can't supply an agreement that is properly executed;

 

Here, 1 of 2 things can happen;

 

A) Agreement irrevocably unenforceable; (s.127(3) applies)

 

At this point, I can challenge the Default entry recorded, as you haven't complied with the CCA in entering the agreement. The Court will likely rule in my favour, if you don't have a signed agreement. The debt is ruled unenforceable and you write off my remaining balance. As the debt is irrevocably unenforceable (s.127(3) applies) you are also ordered to remove the CRA Default and payment history record - I have never been under an obligation to repay you since entering the agreement.

 

B) Agreement improperly executed, but has my signature; (s.127(1)(i) applies)

 

At this point, I can challenge the Default entry recorded, as you haven't complied with the CCA in entering the agreement. The Court will likely rule in your favour, if you do have a signed agreement. The debt is ruled enforceable I get a CCJ, which I have to repay to you.

 

Conclusion;

 

In both situations, I have been negatively effected by negative payment history (default payment history) plus having a Default (a Default entry once the agreement is terminated) entry on my CRA file.

 

If I didn't know I needed to challenge the payment history under the DPA in situation A, it's likely the Court will still reach it's conclusion, but the negative data (payment history) wouldn't be challenged - I still couldn't get a contract with O2, as a result, despite the Default being removed!

 

The difference is that default (note the lowercase "d") payment history represents the actual payment history of the account, but a Default (note the uppercase "D") entry may have a more severe effect on my credit score. The process of recording of default payment history is different to the process needed for Defaulting an agreement under the CCA - even though default payments usually result in Defaults being recorded.

 

HTH?

[Dahlia]

Hello

 

I am a newbie poster so please forgive my ignorance but can anyone point me to a dummies guide to the CCA stuff as I have been looking through the threads but getting pretty confused now.

 

Where do I start, what should I look for that would make a CCA unenforcable- sorry I know this is very basic but I can't seem to find the an explanation about unenforcable CCAs

 

I am trying to negotiate a reduced payment plan re an Alliance and Leceister credit card but am finding them to be really unhelpful and in fact pretty rude.

 

I have already sent a complaint via the Financial Ombudsman because of the grief their DCA AEGIS is giving me.

 

Many thanks for any advise

 

D

[car2403]

You're a star:)

 

I get it I think (with a little 'woohoo' sounding in my head:D).

 

The default on the credit file doesn't mean a Default, it just means a dodgy payment history (1,2,3,4 etc showing on record). At the point they issue a Default Notice and I don't remedy it, they can now enter that bit fat 'D' on my record, however they can't do this bit if they haven't sent the DN.

 

So, they can default (mark the arrears) on an account as soon as you miss or are late with a payment, but they can't Default it (mark it as 'D') until they send you a notice that you don't remedy.

 

In this scenario then, when, as I have had on at least one account that I can see, they enter a 'D' some weeks before selling on an account and issuing me with a Default on my file, they have been a tad naughty.

 

Is that about right?

 

Lexis:)

 

By George, he's got it!!!

 

(Just as well, as I sort of lost my train of thought in that last post and was wondering if it makes sense?! Seems it does!!)

 

[car2403]

Hello

 

I am a newbie poster so please forgive my ignorance but can anyone point me to a dummies guide to the CCA stuff as I have been looking through the threads but getting pretty confused now.

 

Where do I start, what should I look for that would make a CCA unenforcable- sorry I know this is very basic but I can't seem to find the an explanation about unenforcable CCAs

 

I am trying to negotiate a reduced payment plan re an Alliance and Leceister credit card but am finding them to be really unhelpful and in fact pretty rude.

 

I have already sent a complaint via the Financial Ombudsman because of the grief their DCA AEGIS is giving me.

 

Many thanks for any advise

 

D

 

Hi D, welcome to the mad house.

 

Yes, this thread is a monster... I haven't even read ALL of it, so don't worry.

 

The first 10 posts are so are all you need really.

 

I wouldn't worry about what is/isn't an enforceable agreement, as there's plenty of "friends" around to help you out.

 

The best thing is to send the CCA request letter - you'll find this in the library in the forums - then start a thread for each response and any follow up you get. There's some important links and guides in my signature that will get you started, but don't be afraid to come back and ask questions if you get stuck.

[scrible]

viscount stair and sb100

thanks for your reply - no nothing on the back - I remember filling this in as the application form - it was back in 1984 and dont recall signing anything else.

 

should i now go back with an 'unenforceable' letter????

[SteveH2508]

viscount stair and sb100

thanks for your reply - no nothing on the back - I remember filling this in as the application form - it was back in 1984 and dont recall signing anything else.

 

should i now go back with an 'unenforceable' letter????

 

Are you sure about the 1984 date?

 

It is crucial to this!

[scrible]

SteveH sorry this agreement was dated Jan 98 ( No idea where I got 1984 from!!!). Does this make a difference?