Lowells chasing almost statute barred cap1 card debt

[Craigbadger]

Hi, just after a bit of advice here.

 

I have been behind and over my limit for about 12 months but had been making regular payment all be it not enough for my account to be up to date. Today I recieved a letter. It said the following.

 

Overdue amount: £.....

 

 

IMPORTANT YOU SHOULD READ THIS CAREFULLY

 

Notice of Default served under section 87(1) of the consumer credit act 1974

 

Youve broken your agreement ........

 

You must pay the amount overdue shown above. This payment must reach your account within 28 days of this letter.

 

If youve already paid this or have made a payment agreement with - thank you. Please ignore this letter.

 

Then it lists what they will do if I dont do the above ie shut account, chase debt.

 

 

 

 

What I want to know is, I spoke to them monday and paid 70% of the above and agreed to pay the remainder of the arrears by friday. He did mention that a letter had been sent out but told me if I paid this it would be canceled.

 

What I want to know is will they stick to there word?.

Is this an actual default notice as I dont remember recieving a warning?

Should I ring up and pay it today and argue that I didnt recieve the letter till friday or something because of the snow(foot deep here today).

When he says canceled does that mean its already been put on my file and they will just change to satisfied or will it actually be removed or not even be added?.

Will they have recordings of the call where he promised it would be removed on payment of the arrears and could I request that if need be?.

 

 

 

Sorry to waffle, I know I have been a bit slack with payments but have my reasons and despite my current position, being 29 I could do without any nasty marks on my credit file and the letter seems a bit confusing, maybe deliberate to get me to pay I dont know?

Thanks for your time, any advice would be much apprecieted.

Edited January 13, 2010 by Craigbadger

[reallymadwoman]

I'm not entirely sure exactly what you're asking or what you're worried about, so I'll try to answer each bit separately.

 

Hi, just after a bit of advice here.

Basically I have been behind and over my limit for about 12 months but had been making regular payment all be it not enough for my account to be up to date. Today I recieved a letter. It said the following.

 

Overdue amount: £.....

 

 

IMPORTANT YOU SHOULD READ THIS CAREFULLY

 

Notice of Default served under section 87(1) of the consumer credit act 1974

 

Youve broken your agreement ........

 

You must pay the amount overdue shown above. This payment must reach your account within 28 days of this letter.

 

If youve already paid this or have made a payment agreement with - thank you. Please ignore this letter.

 

Then it lists what they will do if I dont do the above ie shut account, chase debt.

 

This is a default notice. I'm no expert on default notices, but aren't they supposed to give you 28 days from when you received it? Just in case it may be needed at some point, write on the letter the date you received it and keep the envelope it came in. Staple them together, firmly!

 

 

What I want to know is, I spoke to them monday and paid 70% of the above and agreed to pay the remainder of the arrears by friday. He did mention that a letter had been sent out but told me if I paid this it would be canceled.

 

Obviously the default notice is the letter you mentioned. If you are able to without leaving yourself short for priorities such as food, then stick to what you agreed.

What I want to know is will they stick to there word?.

If you pay by Friday, that's well within the time allowed by their default notice so you've put the account back in order and it will be as if the notice was never issued.

Is this an actual default notice as I dont remember recieving a warning?

 

No warning is required.

Should I ring up and pay it today and argue that I didnt recieve the letter till friday or something because of the snow(foot deep here today).

 

Just stick to what you agreed if you can, or if you can't try to pay within the time they've given you. If you can't do that either, then ask for more help.

When he says canceled does that mean its already been put on my file and they will just change to satisfied or will it actually be removed or not even be added?.

 

As I said above, so long as you put the account back in order within the time given, it's as if the notice was never issued. I think you may be confusing a default notice under the CCA with a default on your credit file. They are extremely unlikely to have put a default on your credit file already since technically you are not yet in default since you still have time to put things right. If you're worried about that you could check your credit file (but leave it 4-6 weeks since it can take that long to show up) and if they have put a default marker on you could challenge it.

Will they have recordings of the call where he promised it would be removed on payment of the arrears and could I request that if need be?.

 

You shouldn't need it. From now on it might be wise to take account of the standard advice on the forum and only speak to people on the phone about something that could later be disputed if you have the means to record it yourself.

 

 

 

Sorry to waffle, I know I have been a bit slack with payments but have my reasons and despite my current position, being 29 I could do without any nasty marks on my credit file and the letter seems a bit confusing, maybe deliberate to get me to pay I dont know?

Thanks for your time, any advice would be much apprecieted.

[Craigbadger]

Thanks for taking the time to answer that. I will pay friday then as agreed and hope thats the matter over.

[reallymadwoman]

Happy to help.

[craigers]

What is the date the default notice was issued, and when did you pay the 70%?

[Craigbadger]

Dated sunday and paid monday, for the record is was over £300 so a fair chunk.

[Craigbadger]

For the record they kept there word.

[reallymadwoman]

Since it's rather unusual on this forum to find a creditor sticking to their word, would you mind naming them?

 

I'm sure they won't mind getting some positive feedback for a change!

[Craigbadger]

Capital one

[craigers]

i would check your credit file just in case.

[reallymadwoman]

Capital one

 

Now that really is a surprise!

 

It certainly won't hurt to check your credit file, but leave it at least 4 weeks since they often take that long to process.

[Dotty50]

Hi,

 

If you have been over your limit and behind for the last 12 months, I expect this will be reflected on the CRA's anyway.

 

Don't let them bully you into paying if you cannot afford it, ensure that your priority debts are paid first.

 

But if you have satisfied the default notice, then they shouldn't register it, but don't bank on it or rely on ANYTHING they say!

 

It is really best to avoid talking to them on the phone if you can.

[dx100uk]

the notice is defective anyway

the payby date must specify an actual calendar date NOT XX days from the date of this letter or any other date they may pick out the woodworm.

 

Cap1 send out a variety of these letters, none of which ARE an actual default notice [it must use those exact words] they are just letters telling you that you have a 'default' in the way you have [not yet] paid them.

 

there is a very good thread on defective default notices, use the search in the blue bar above.

 

dx

[mkb]

That effort at a Default Notice is pitiful since it doesn't comply with the regulations set by the CCA.

 

Have a look here for full explanation

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-1911404.html

 

There are also regs about specific prominence being given to some words

 

http://www.consumeractiongroup.co.uk/forum/show-post/post-2659619.html

[Dotty50]

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/196312-invalid-default-notices.html?highlight=default+notices

 

Here is one, if it helps

[Craigbadger]

Just wondered, I sent a request almost 2 weeks ago. I'd of thought they'd of come up with a copy of this pretty quickly. Ah well no news is good news(as they say).

Its a funny one though, i'm sure I applied online but think there may of been some paperwork to sign etc aswell. Ah well we'll see, or not. Infact my old dear throws nothing so i'll have a wade through see if I can find anything.

Was May 2005 btw

 

[Craigbadger]

Hi, recieved this today, posted up on MSE and he thinks its enforceable because it references to the t&c however there is no actual scan of the reverse sheet(which ive seen others recieve) just 5 pages of t&c (which look generic).

 

Ive seen a fair few of these on here which people say are unenforcable so just wondered what you think of this?, and has anyone had any experience with being taken to court on the strength of 1 of these?.

 

In simple i'm screwed, arrears are over a months wages and 3 months late, balance is well into 5 figures, apr is 36 and ive got no chance of paying it off or even clearing the arrears so if they are likely to take me to court i'd rather know.

 

Just after your views(preferably with experience) on where I should go, ive nothing to lose so open to ideas, gonna default shortly i'm sure

 

http://i1017.photobucket.com/albums/af299/badgercraig/caponeccaedited.jpg

Edited July 8, 2010 by Craigbadger

[cerberusalert]

It's not enforceable because it doesn't contain all the prescribed terms. It may refer to T&Cs but there is no link to them nor are the prescribed terms within the 4 corners of the signed agreement. Send them this;

 

Dear Sirs,

 

Account no xxxxxxxxxxxxxx

 

 

Re: my request under the Consumer Credit Act 1974

 

This account is in Dispute .

 

On xx/xx/2009 I wrote to xxxxxxxxx requesting that xxxxxxx supply me a true copy of the executed credit agreement for this account.

In response to this request I was supplied a document which did not comply with the requirements of the Consumer Credit Act 1974.

 

The document sent purporting to be a credit agreement does not contain any of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. 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 none of the terms are present in the 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 addition should you continue to pursue me for this debt you will be in breach of the OFT guidelines, I draw your attention to the Office of Fair Trading’s guidance on debt collection

The OFT guidance which was issued July 2003 (updated December 2006) relating to debt collections and what the OFT considers unfair, I refer to page 5 of the guidance which states;

 

2.6 Examples of unfair practices are as follows:

 

h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment.

 

I require you to produce a compliant copy of my credit agreement to confirm I am liable to you or any organisation, which you represent for this alleged debt, if you cannot do so I require written clarification that this is the case. Should you ignore this request I will report you to the Office of Fair Trading to consider your suitability to hold a credit licence in addition to a complaint to Trading Standards, as you will be in breach of the Administration of Justice Act 1970 section 40

 

Since the agreement is unenforceable and the default notice is non compliant, it would be in everyone’s interest to consider the matter closed and for your client to write the debt off. I suggest you give serious consideration to this as any attempt of litigation will be vigorously defended and I will counter claim for all quantifiable damages

 

I respectfully request a response to this letter in 14 days

 

 

I trust this out lines the situation

Print name do not sign

[Craigbadger]

Great thanks for looking, guess thats the importance of getting multiple opinions.

[Craigbadger]

Right I sent that letter last week and theyve not called since friday which considering they were calling both phones 4+ times a day is pretty refreshing. Maybe theyve realised its a waste of time.

 

Is it time to worry or this just the calm before the storm?

Now about 11 weeks without any payment so surely the defaults gotta come soon.

[Bazooka Boo]

I'd spend my time lodging formal complaints to the relevant bodies about their harassment via the phone.

 

Ofcom

 

Telecommunications Act 1984 (c. 12) - Statute Law Database

 

Protection from Harassment Act 1997 (c. 40)

[Craigbadger]

13 weeks no payment, £1200 arrears but no default notice. They sent me one in Jan for £412 which was removed as it was paid within 14 days and nothing was ever added to my credit history.

I have put the account into dispute on grounds of dodgy cca and they never responded.

Is this normal or is there a chance theyve messed something up or actually respecting my dispute?. Nothing on my record and they updated it 6 weeks ago showing 2 months arrears.

I guess its a matter of waiting(which is the bad bit).

 

Be curious to get opinions though considering the first notice came after 1 missed payment and being over limit a bit for a few months.

[PriorityOne]

Sounds like you rememdied the first default, so why did you decide to CCA?

 

Some companies will respond to a CCA and some won't... but they normally do at some point, especially if it's the original creditor. How long ago did you CCA?.... 13 weeks?

[Craigbadger]

Hi thanks for looking.

I did not even know I could query the cca till I found this site after recieving and paying the first default, I had to borrow of my parents to desperately clear the debt.

I CCA'd them because I realised that despite paying 3.5k in the previous 12 months and not using the card, the balance had dropped less than £100, agreement had gone from 6% to 35.9 on a large balance, they were totally unsympathetic to my change in circumstances(broken ankle late last year, i'm self employed so no pay other than the small amount of benefits), I sold everything I owned to keep up payments and maxed out everything. I thought this was grounds for having a look at my agreement + the fact I genuinely cannot afford to pay it anymore and was considering bankruptcy due to the dire state of my finances, I had little to lose. I'd never clear this debt in 6 years or even 60 so figured i'll take the default rather than the bankruptcy.

 

They responded to my CCA request with a Signature page with no terms and a generic t&c within the 12 days so I wrote back with a letter which cerberusalert posted up, this was about a month ago at a guess.

 

I guess its just the lack of contact from them thats confusing me.

 

Interestingly I checked with Equifax and they are showing 3 payments in arrears dated 2 weeks before the Experian mark showing 2.

 

They seem like a well oiled ship:rolleyes:

 

[PriorityOne]

That's a horrendous leap in interest!

 

Sounds like they may have decided to penalise you for defaulting even though you cleared it at the time.

 

Wait and see what they come back with but don't get into any conversations over the 'phone.