court threat from Brian Carter sols

[floricita]

Hi,.

 

I have had a debt with cap 1. This was for £2200.

 

It was passed to fredrickson international.

 

After several threatening letters I decided to phone them and I told them that I have had a hard financial period which included several months of unemployment. I said that I currently have a family friend who is williing to lend me money to pay off all my debts @ %40.

 

I said on the phone that the £2200 was made up of approx £300 charges which were unfar in my view at £16.

 

We came to a number on the phone of £1000, which the lady said she would have to get authorozied. She would phone me back the next day. In the meantime she said it might be a good idea to do an income and expendituture doc and send it to them. I didn't do this and she didn't ever phone back. This was a month ago.

 

Now I have a letter from Brian Carter Sols acting on behalf of cap 1 wanting the whole sum in a week's time otherwise I go to court.

 

Any advice please?

[floricita]

I also just noticed that they have virtually the same address as fredrickson

[Desperate Daniella]

Hi floricita,

 

When was the account first opened?

 

When did you make the last payment on the account?

 

Have you ever asked for, or been sent the original agreement for this account?

 

DD

[dx100uk]

read the letter properly

 

it does not say WILL

 

every word but.

 

is that charges figure including compounded int at THEIR card purchase rate?

[dx100uk]

and you REALLY need to stay off the phone!!

 

neve ever converse on the phone to a DCA

 

they are NOT BAILIFFS

 

and have

 

NO SUCH LEGAL POWERS

 

dx

[floricita]

Hi floricita,

 

When was the account first opened?

 

When did you make the last payment on the account?

 

Have you ever asked for, or been sent the original agreement for this account?

 

DD

 

Hi It was openened years ago. Maybe 9 years.

 

Last payment was a while ago I would have to check. I have the original contract because I claimed back charges about 4-5 years ago.

[floricita]

read the letter properly

 

it does not say WILL

 

every word but.

 

is that charges figure including compounded int at THEIR card purchase rate?

 

Hi, it says on the letter that it will be referred to court proceedings on the 13th if I don't pay in full.

 

Now I have dealt with sols before, but they don't then tend to phone you up. This gives me the impressions especially as they have virtually the same address as fredrickson international that they may be slight cowboys.

 

I don't know what card purchase rate is? I was looking at the 16 charges and statutory interest. I didn't buy many things once the card went to the limit.

 

Regarding the phone. I do understand your point and in general staying off the phone is a must especially when you need it concrete with regards to offers. But I have recently had some success with phoing up dcas when I have been trying to get these debts paid off and so far they have been very nice and followed up with what was requested in writing. Only this one hasn't done what it said it would.

[floricita]

Ok I just spoke with brian carter. he said that they had rejected my offer but hadn' got back to me on it.

 

I asked them to make the offer again but he said they would only accept 70%. holding the account for a few days

 

now do I submit my claim for charges get them back then make the offer? (by that time my finances should be a lot better meaning chances of reduced settlement less)

 

Or write make the offer of 70% + charges then I wouldn't know what to do if they just accept the offer and ot charges?

 

Advice on how to proceed.

 

I really want to get fully out of debt and would love for this to get settled in full.

[Desperate Daniella]

What exactly did they send you when you asked for the agreement? If you opened the account in 2004 it almost certainly won't contain the Prescribed Terms and therefore will be unenforceable. If you really want to settle this you are in a stronger position to do so, and for far less money, if you can tell them the agreement is unenforceable anyway.

 

Please check exactly when you made the last payment.

 

DD

[floricita]

The last payment the man at the sols said was last july.

 

I think I would have to check, that it was the t&cs and a signed copy of the contract I would have to check though.

 

Not sure about the enforcability of the debt on this technicality.

 

I'm trying to be equitable and pay all creditors the same 40% (which first two have accepted) and get out of debt immediately rather than drag it on.

 

If I go to %70 with this lot then someone else will have to wait a bit longer for their settlement as a relative lent me 40% to settle all debts,

 

so I would have to wait to save up the remained.

 

If it wet up to 50% not such a problem but they don't seem to want to move.

[floricita]

the guy I spoke to though didn't sound like he knew what he was talking about though,

because he was being helpful and said he would refer my offer back to cap 1,

 

then someone shouted in his ear that they would definitely not accept this,

 

then he came back and repeated those words and said the highest they would do was 70%.

 

The whole thing didn't seem like a proper sols.

[Desperate Daniella]

the guy I spoke to though didn't sound like he knew what he was talking about though, because he was being helpful and said he would refer my offer back to cap 1, then someone shouted in his ear that they would definitely not accept this, then he came back and repeated those words and said the highest they would do was 70%. The whole thing didn't seem like a proper sols.

 

That is because they are solicitors dedicated to collecting debts, not what we would refer to as "proper solicitors".

 

You volunteered that you could pay them some money and that is why they are not bullying you for the lot.

[floricita]

Thanks.

 

So what kind of letter should I consruct?

[Desperate Daniella]

The last payment the man at the sols said was last july.

 

I think I would have to check, that it was the t&cs and a signed copy of the contract I would have to check though.

 

Not sure about the enforcability of the debt on this technicality. I'm trying to be equitable and pay all creditors the same 40% (which first two have accepted) and get out of debt immediately rather than drag it on. If I go to %70 with this lot then someone else will have to wait a bit longer for their settlement as a relative lent me 40% to settle all debts, so I would have to wait to save up the remained. If it wet up to 50% not such a problem but they don't seem to want to move.

 

Don't take his word for when you made the last payment. You must check it for yourself.

 

What do you mean by a "technicality"? The agreement either meets the regulations laid down in the Consumer Credit Act 1974 or it doesn't. If the debt is unenforceable you can then offer them what you want and tell them that they are not actually entitled to anything without a proper agreement, so take it or leave it.

[Desperate Daniella]

PLEASE don't do anything at all until you have checked the agreement they sent you. Don't ring, or write.

[floricita]

Why is that daniella?

 

Regardless of any slight technical things i the contract which I don't think there are, surely a court would see the evidence for monies being borrowed from party a and needs to pay back to party b at some equitable barginnning

[Desperate Daniella]

They are not "slight technical things" The Regulations are laid down in an Act of Parliament. It is not whether or not you received the money, it is the terms on which you received the money.

 

I've never, having looked at dozens of Capital One threads, seen a single Capital One agreement from the early 2000s which was compliant with the Regulations.

 

It's great that you want to settle your debts, but if the agreement is not enforceable then you can do it on your own terms.

[floricita]

Thanks Daniella. Could you explain to me in simple terms what the impact and implication is if the debt is not enforceable for the reasons you have just stated and how that would roughly effect this case.

[Desperate Daniella]

If they were to take you to court as they have apparently threatened then they will have to produce a copy of the original agreement. If this does not contain the prescribed terms on the original agreement you signed, then you can argue that it cannot be enforced.

 

You do not want to go to court obviously, so you need to double check your agreement to see exactly what it contains. Not on a separate sheet of conditions; actually on what you signed. Can you post it up here? Removing your name and any personal details, of course.

 

If the agreement isn't valid your negotiating position with Bryan Carter is much stronger, because you can say you know the agreement isn't enforceable but in order to bring matters to a close you will pay XXX% in full and final settlement and they will clean up any defaults on your credit file.

[floricita]

How can you get people to clear up your defualt files? None have so far

 

Yes I have see your argument before. I think it can be used as a barginning tool. Even though you would be surprised how stubborn and uninformed some of these big companies are and the ignore many arguments legit or not then back down last minute.

 

However, I am not convinced that relying on this soley would render the debt unenforcable by the judge. In the sense that there would be clear and substantial evidence that monies have been lent and receieved. The t&cs may not meet the exacting specifications in the cca, but this tecnicality surely would not outweighh all the other common sense evidence b the judge?

 

This is hypothetical because I don't expect this goes to court going by my experience, just another line of threats.

[floricita]

What do you mean by a "technicality"? The agreement either meets the regulations laid down in the Consumer Credit Act 1974 or it doesn't. If the debt is unenforceable you can then offer them what you want and tell them that they are not actually entitled to anything without a proper agreement, so take it or leave it.

 

I am not sure that this would work in a court of law would it? Are there cases where it has based on this alone?

[Desperate Daniella]

If they want the money, and they have an unenforceable agreement, they should be willing to clean up your credit file with regard to that particular debt.

 

Thankfully many people on this forum have gone to court against a DCA who does not have an enforceable agreement and they have won their cases because they can argue the facts.

 

Other people have got entire five figure balances written off completely and the entries on the credit files removed because they have told the DCA in writing that they know they do not have an enforceable agreement.

[floricita]

Thanks Daniella. I will check when I get back tonight.

 

Re-credit files. What the others have done is note on the file (once payment has been made) payment settleed in full but with reference to partial payment. So it is still on the file. But I haven't got any previous entries removed. I didn't know you could do this.

[Desperate Daniella]

You'll only get them removed if that is part of the agreement you make for an F&F.

 

Let us know exactly what you have later.

[floricita]

Thanks and what am I looking out for to see if it is enforcable or not?