Capquest chasing 2nd Cap1 card debt

[Desperate Daniella]

Have they given any clue as to why they have sent two leaflets which aren't the same? And one typed up so-called agreement and the same thing headed 'Defaulted Agreement?"

[Desperate Daniella]

Hi SWLABR9,

 

My best ever quote from a DCA was when I told her that the agreement they had sent didn't have the Prescribed Terms as set down in Regulations of the Consumer Credit Act 1974, and she replied:

 

"What's that got to do with it?"

[Rayn2036]

DD, which two leaflets are you referring to? If you are referring to my other debt with Robebrs Way then it may be because application was made 13 months apart hence their leaflet may have changed but obviously CapQ dont know about my other debt.

 

There are two sets of T& Cs, once at execution and one when the account defaulted.

[fletch70]

As far as I can see there is absolutely nothing to suggest that those terms and conditions were in any way related to your application and as such do not fulfil S61 .

 

You can happily yse DD letters or you could send a simple one liner saying

dear sir

Thank you for your letter blah blah blah

The documents you have sent me do not conform to the requirements of S61 CCA1974 and as such by virtue of S127(3) are irredeemably unenforceable.

 

Please confirm that you will now close the account .

 

If you want a proper letter to that i could dig one out but i am away at them mo and they are all on my laptop at home. Back there tonight

[Desperate Daniella]

DD, which two leaflets are you referring to? If you are referring to my other debt with Robebrs Way then it may be because application was made 13 months apart hence their leaflet may have changed but obviously CapQ dont know about my other debt.

 

There are two sets of T& Cs, once at execution and one when the account defaulted.

 

Sorry I was muddled.

 

Let me have another look.

[Desperate Daniella]

Sorry. I am confused by their terms of Original Agreement and Defaulted Agreement*, and I didn't realise that the larger page was a blown up shot of the front page of the leaflet agreement. At least I think that is right. When I received the CapOne so-called agreement the whole thing was typed on A4 which is what was confusing me here. What they have said is the Original Agreement can't be what they supplied at the time.

 

*They usually say Original Agreement and the current T&Cs. Strange.

 

Anyway there is no signature on the so-called agreements, only on the application form.

 

You can of course send fletch's much more polite letter and see what they say.

 

I wouldn't worry about Court as you mentioned above. They don't seem to be saying anything about that.

[Rayn2036]

If you want a proper letter to that i could dig one out but i am away at them mo and they are all on my laptop at home. Back there tonight

 

I would appreciate a proper letter please. Thanks

[Rayn2036]

Sorry. I am confused by their terms of Original Agreement and Defaulted Agreement*, and I didn't realise that the larger page was a blown up shot of the front page of the leaflet agreement. At least I think that is right. When I received the CapOne so-called agreement the whole thing was typed on A4 which is what was confusing me here. What they have said is the Original Agreement can't be what they supplied at the time.

 

*They usually say Original Agreement and the current T&Cs. Strange.

 

Anyway there is no signature on the so-called agreements, only on the application form.

 

You can of course send fletch's much more polite letter and see what they say.

 

I wouldn't worry about Court as you mentioned above. They don't seem to be saying anything about that.

I get paranoid when I hear a word enforceable. Thanks DD, I wil wait till I hear from Fletch on proper letter.

[fletch70]

Here are two letters take your pick

 

The first one is what is says a letter saying you sent me an application form

 

Dear Sirs

Account No: XXXXXXXX

​On XX/XX/XXXX I wrote requesting a true copy of the executed credit agreement for the above account. In response to this request I was supplied an application form, a copy of which is attached, which did not comply with the requirements of the Consumer Credit Act 1974 (CCA1974). I would like a copy of the actual agreement. I appreciate that as per Carey v HSBC, a reconstituted agreement can be provided, however I am disputing the actual existence of such an original which means the Carey case is irrelevant as without one the account would still be deemed unenforceable. Carey only went to prove that if you could not provide an original, for whatever reason, but had proof on your systems/records that certain conditions were in place at that time then a recon could be submitted only in-so-far as to satisfy your s.78 request. If you do not have an original then a recon cannot be produced.*

The document you sent, purporting to be a credit agreement, does not contain all of the prescribed terms as required by section 60(1) Consumer Credit Act 1974, plus you did send an application form. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say, all of the required terms are not present in this document. Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states:*

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced. *

​In MBNA v McCullagh; the judge ruled;

"The terms and conditions are plainly not a copy of those on the original agreement. There may only be one difference identified (it is difficult to tell from the illegible copy of the original) but that is enough. The obligation is to provide "a copy of the executed agreement". This plainly cannot be a copy of the original agreement. It is not open to the claimant to say that the difference is 'de minimis'. They have to provide a copy of the original (reconstituted or otherwise)"

​The OFT Guidance clearly states that lenders would be acting unfairly, and potentially in breach of their consumer credit licenses, if they misled borrowers by:

hiding or disguising the fact that there was never a proper signed agreement in the first place

providing only a copy of the current terms and conditions, not the original ones​

​Similarly, in line with recent OFT Guidance surrounding Unenforceability, I presume you're aware that the OFT has stipulated the following;

​Sections 77-79 of the Consumer Credit Act 1974 outline the information creditors must provide to debtors under fixed-term, running account & Hire Agreements. Under these sections a debtor can pay £1 to get:

a copy of their agreement

copies of some of the other documents mentioned in their agreement

a statement of account​

If this information is not provided within 12 working days the debt becomes unenforceable. This means a creditor cannot:

make the debtor pay the debt before they're supposed to

get a court judgment against the debtor

This account is unenforceable until you comply with my original request and send a copy of the original document, if it exists. If it does not, then you have to confirm this fact in line with your licensing guidance, as detailed above.*

Yours faithfully,

​

Sign using a computer font

 

and here is one that says the PTs are missing

 

Dear Sirs

​Account No: XXXXXXXX​

​On XX/XX/XXXX I wrote requesting that you supply me a true copy of the executed credit agreement for the above account. In response to this request I was supplied a document, a copy of which is attached, that did not comply with the requirements of the Consumer Credit Act 1974 (CCA1974), as it does not contain all the prescribed terms. The document that you are supposed to send me is a true copy of the executed agreement that contains the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in s.61(1) of the CCA(1974) and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document. In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.​

The prescribed terms, as required by section 60(1) Consumer Credit Act 1974, are not at all present and therefore the documents provided do not constitute a ‘true copy’. The Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 (SI/1557) states:

​2: Legibility of notices and copy documents and wording of prescribed Forms

(1) The lettering in every notice in a Form prescribed by these Regulations and in every copy of an executed agreement, security instrument or other document referred to in the Act and delivered or sent to a debtor, hirer or surety under any provision of the Act shall, apart from any signature, be easily legible and of a colour which is readily distinguishable from the .​

The recent McGuffick and Carey cases confirmed that a lender should submit upon request a valid true copy of the original CCA and also went on to suggest that both the creditor and debtors name and address are clearly displayed - the Judge dealt with this point at paragraph 60 of his judgement when he said this:​

"As a matter of common sense It is difficult to see how a copy of a document can omit the names of the parties. It might he thought that the address of the debtor, however, was immaterial, at least to the debtor, who can be assumed to know what it was at the time, if different from his present address. *However, as noted above any application of the concept of materiality must not override the requirements of section 78 and the Copies Regulations properly understood. In my view it is clear that the name and address must be provided"​

I appreciate and understand the provision of the recent Carey v HSBC case that stipulates a reconstituted agreement can be provided, I'd like to also point out that I am disputing the actual existence of such an original which means the Carey case is irrelevant as without one the account would still be deemed unenforceable. Carey only went to prove that if you could not provide an original, for whatever reason, but had proof on your systems/records that certain conditions were in place at that time then a recon could be submitted only in-so-far as to satisfy your s.78 request. If you do not have an original then a recon cannot be produced.​

The OFT Guidance clearly states that lenders would be acting unfairly, and potentially in breach of their consumer credit licenses, if they misled borrowers by:

hiding or disguising the fact that there was never a proper signed agreement in the first place

providing only a copy of the current terms and conditions, not the original ones

Similarly, in line with recent OFT Guidance surrounding Unenforceability, I presume you're aware that the OFT has stipulated the following;​

Sections 77-79 of the Consumer Credit Act 1974 outline the information creditors must provide to debtors under fixed-term, running account & Hire Agreements. Under these sections a debtor can pay £1 to get:

a copy of their agreement

copies of some of the other documents mentioned in their agreement

a statement of account

If this information is not provided within 12 working days the debt becomes unenforceable. This means a creditor cannot:

make the debtor pay the debt before they're supposed to

get a court judgment against the debtor

In view of the above, this account is unenforceable until you provide me with the original purported document, if it exists. If it does not, then you must confirm this to me in line with your licensing guidance, as detailed above.​

Yours faithfully,

​

Sign using a computer font

 

Personally I think they are a bit long winded as a starting point and will be seen by the creditor as a template letter so I always tend to par them down a bit

 

I have highlighted the bits in red that I think are the important basics

[Desperate Daniella]

They are both very good letters, fletch, but I don't think they should include any reference to Carey saying a reconstituted agreement can be provided as it gives them something to quote back. (They may well do anyway. DCAs like that bit as they think it helps them.)

 

A reconstituted agreement can certainly satisfy the Section 77/79 request as it says in Paragraph 234 (1) of the Judgment, but paragraph 234 (4) does state that where an agreement has been varied by the creditor under a unilateral power of variation the creditor must still provide a copy of the original agreement as well as the varied terms. It doesn't say this can be reconstituted, as in 234 (1), it says a copy of the original agreement and I have argued successfully with DCAs that "original" means the one that I signed.

 

I totally agree that the shorter versions are probably better. As you rightly point out, creditors do recognize template letters and something shorter and more to the point is more likely to be taken seriously.

 

When I first started writing letters I would quote entire judgments, and then a barrister friend said it's better just to put, "You will be aware that there is a House of Lords' Authority on this." She says it makes you sound a bit sharper to whoever has the pleasure of reading it!

[fletch70]

Hi DD

I have to be honest , those letters were used on another site (although that is not where I got them from). Indeed when I first started I use to send the whole letter without any thought and sometimes said things like your constant telephone calls are harassment and I will only communicate in writing when in fact they had called me once! Now I tailor my letters to suit, just done a 3 in one to wets..no doorstep, in writing and it RBS did not comply with my S78 request. I know what is coming on that, they will write back asking for £1...they always do.

[Rayn2036]

Hi Fletch, I already sent your first letter as per your previous suggestion on Post#33. It was sent on 14/11/2013 and their response is attached on post #52. Hence I will write them a shorter and more to the point. Thanks for the effort, much appreciated.

[Desperate Daniella]

Hi DD

I have to be honest , those letters were used on another site (although that is not where I got them from). Indeed when I first started I use to send the whole letter without any thought and sometimes said things like your constant telephone calls are harassment and I will only communicate in writing when in fact they had called me once! Now I tailor my letters to suit, just done a 3 in one to wets..no doorstep, in writing and it RBS did not comply with my S78 request. I know what is coming on that, they will write back asking for £1...they always do.

 

Oh that did make me laugh! Conjures up visions of wets and moorcrap DCAs trying to work when they had actually called and harassed you. :???:

[fletch70]

Sorry Rayn...I must be getting old n senile

 

So you have stated your case and they have refuted it. That tends to be how it goes

I suppose the questions you need to ask yourself are

1) Do you care about a CCJ? How important to you is not having one?

2) Do you have assets that might make them think you can afford it

 

I am not sure if you want to get into letter tennis

I have no job or assets so to a certain extent I have nothing to lose. In the past I have replied to creditors saying basically come and have a go if you think you're hard enough and on one memorable occasion and not my finest hour it was headed Dear F**KWITS

 

They have sent you a final response so not sure if it is even worth replying

 

DD what do you think?

 

 

BTW do not be intimidated by them trying to suggest that the payments that eurodebt have been making add any weight to their claim of enforceability it really doesn't

[Rayn2036]

Hi Fletch, I have no assets apart from a car however I am worried about CCJ as I am planning to re-mortgage wife's house in both our names to get a cheaper interest rate. Should I take the route of offering F&F? If yes, what percentage is acceptable?

[Desperate Daniella]

Well I like: "Come and have go if you think you're hard enough .... "

 

I don't think that Rayn has anything to lose by sending my really sharp letter although I'll amend it a bit. I haven't sent it to Capquest myself as I've had no dealings with them. However, it did work with another DCA who wrote off about £10k. They said they didn't admit anything I had said/accused them of, but they had made a commercial decision to close the account and clear it from my credit files. My theory is that they will only spend money on taking cases to court where it should be easy for them to win, so I always make it clear that I am going to be a total nightmare.

 

Before they go to Court they have to send a Letter Before Claim, and if one of those comes through Rayn can always offer a F&F at that stage. I have never had enough money to offer anyone a F&F so I have to do my best to frighten them off! (And if I tried to pay them off by instalments my grandchildren would be six feet under by the time I had paid them off, and I haven't even got any grandchildren yet.)

 

I've had a number of final responses and I always reply. It may be their final response, but it's not mine. I'm not tempting fate by saying what has happened on my other accounts apart from the fact I haven't had to do anything about them as yet (apart from sending loads of letters of course).

 

Rayn's decision of course.

[Rayn2036]

This debt is for £1k, will it still go through county court or small claim court?

[Desperate Daniella]

It's small claims.

 

I'm surprised they haven't offered a full and final. They usually do that before they start thinking of court.

 

If you really want to offer one I'd go for 30%.

[Rayn2036]

Will small claim court leave a mark on my Credit report?

[Desperate Daniella]

Yes, if you get a CCJ, but you are a long way from that.

[fletch70]

Its a hard decision.

 

You will have to remind me, is the default still on your credit file?

 

If you do get a CCJ and pay it within 28days (I think) it would not appear on your credit file.

 

IMHO it is clearly a pile of tosh and I would keep the fight going but there could be consequences , never say never

 

Nothing wrong at all with sending DD's letter there will be time, I haven't really seen a legal threat .

 

If I were to offer a F&F it would be about 50p lol all I can afford , but from what people tell me start low and work up so mayve 10-15% although 30% is fair

[Rayn2036]

Hi Fletch, default is not on my credit file as this account was defaulted in 2003.

 

I will not pay until they offer me reasonable F&F or get a letter before claim.

 

Thanks DD and Fletch for your valuable opinion.

[Rayn2036]

I don't think that Rayn has anything to lose by sending my really sharp letter although I'll amend it a bit.

Rayn's decision of course.

Hi DD can you please, on your own time, supply me your sharp letter. I will send that off and go quite until I hear from them about F&F offer or letter before claim.

[SWLABR9]

I've had about 4 'final responses' in a row, from Crap1 themselves, if that helps They all end up saying the debt's enforcable when clearly, in my view anyway, it isn't. But letter tennis is a good term. Some days I think 'bring on the DCAs' but others I think well there never was a proper agreement, looks like, so why am I allowing them to say I've defaulted on it on my credit records? And I regroup and think of something else to have a go at them for

[Desperate Daniella]

I've had about 4 'final responses' in a row, from Crap1 themselves, if that helps They all end up saying the debt's enforcable when clearly, in my view anyway, it isn't. But letter tennis is a good term. Some days I think 'bring on the DCAs' but others I think well there never was a proper agreement, looks like, so why am I allowing them to say I've defaulted on it on my credit records? And I regroup and think of something else to have a go at them for

 

I know this isn't really a laughing matter but sometimes if you didn't laugh you'd cry.

 

I once had a DCA on the phone and told her I was waiting to receive a copy of my agreement and she said why couldn't I pay her until I had received it, and I said I believed that I may have been overcharged because the terms and conditions were wrong. And then I asked her if she herself would pay more money to a company she believed had overcharged her until she had proof that they hadn't, and she said she wouldn't either.