CCJ - Without my prior knowledge

[missworry]

Before Christmas 2009 I fell behind on my payments to Capital One

 

 

I had got to the point where I had missed 3 months payments,

they sent me written notification that my account would be terminated if I didn't contact them within a given time frame.

 

I phoned their customer services department within their imposed deadline

and explained that I was suffering financial hardship due to an employer withholding funds on a contract I had completed.

 

 

I offered to make a partial payment but the woman from Capital One would except nothing but the 3 months arrears paid in full.

 

I have since written to Capital regarding this matter and explained my financial situation,

also my experience of the woman in their customer service department and her reluctance to help me.

 

To date I have written 6 letters ( all sent by recorded delivery) requesting information in relation to my account:

 

 

• Confirmation of a recent payment that was made to them.
  
• I wanted know why my offer of a partial payment wasn't excepted by their customer service department.
  

I have emphasised that I'm willing to make payments at a reduced amount until my financial situation has improved.

 

 

Although Capital One have replied to my correspondence

they have failed in answering any of the question that have been asked.

 

In one of the letters from Mr Graham Robinson I was told that my signature was not acceptable and my personal information could not be released.

 

 

He asked that I send another letter with a new signature?

A new signed letter was sent to Capital One with the hope I would get a speedy resolution to this matter.

 

I waited for over a week with no reply from Capital One

 

 

I decided to send yet another letter chasing them up for a explanation to as why the hadn't responded to my communication.

 

When finally I did receive confirmation of my correspondence

I was informed that my case had now been passed to a debt recovery agency

and In the future I should contact them.

 

In the letters from Capital One I was under the impression that I would be dealing with them directly until this matter was resolved.

 

I was never forewarned of their intention to pass on the debt to a third party, I'm really not happy about this.

 

I would be grateful of any advice – thank you.

Edited June 20, 2010 by missworry

[sunflower99]

Hi Miss worry

Very odd behaviour from crap one,Is this a loan or a credit card??What year was loan or card taken out? They never want to negotiate with people and try and squeese what they can out of people if they think they can get away with it,

[missworry]

Hey, thank you for taking time a look at this I really do appreciate it,

I was getting quite lonely here......

 

As for the year I'm not entirely sure

I know that sounds crazy but it has to be 7 years at the very least.

 

 

I must admit it was the main reason for me sending the SAR today

so I could establish when I took the credit card out with them.

 

What would you do if you had been told that your case had been passed to a debt recovery agency in spite of you making every effort to be honest and being more than willing to come to some arrangement?

 

In all 6 of my letters to Capital One I always made it very clear that I was willing to make payments albeit at reduced amount until my financial situation improved.

 

Once again thanks for taking time out to have a look.

[maroondevo52]

Hi,

 

Have you thought about sending them a CCA request, are there any charges you could re-claim on the card ?

 

Regards.

 

Scott.

[Craigbadger]

CCA them for sure, check Sunflowers thread for a few of the so called agreements.

 

Dont be intimidated by them, in my experience of credit cards they are by far the worst for constant phone harassment and seem to have the least intelligent phone staff.

 

Odd that your accounts been moved on, have you recieved an actual default notice?. I'm about 14 weeks and £1200 in arrears and am yet to receive a default either.

 

In the meantime take it easy, dont let them get you down, youve been reasonable theyve been anything but, you'll deal with the matter much better when youre well slept.

[sunflower99]

Dear Sir/Madam

 

ACCOUNT NUMBER: xxxxxxxxxxxxxxxxxxxxxx

With reference to the above agreement, I would be grateful if you would send me a copy of this credit agreement.

I understand that under the Consumer Credit Act 1974 (Sections 77−79), I am entitled to receive a copy of my credit agreement on request. I enclose a payment of £1.00 which represents the fee payable under the Consumer Credit Act.

 

I understand a copy of my credit agreement should be supplied within 12 working days.

 

I understand that under the Consumer Credit Act creditors are unable to enforce an agreement if they fail to comply with a request for a copy of the agreement under these sections of the Act.

 

I look forward to hearing from you.

 

Yours faithfully

 

 

Once you get a reply, scan it and post it up on here (make sure you remove personal detals) and somebody will be along to help. I hope this helps you get started.

 

[sunflower99]

Hey, thank you for taking time a look at this I really do appreciate it, I was getting quite lonely here......

As for the year I'm not entirely sure and I know that sounds crazy but it has to be 7 years at the very least. I must admit it was the main reason for me sending the SAR today so I could establish when I took the credit card out with them.

What would you do if you had been told that your case had been passed to a debt recovery agency in spite of you making every effort to be honest and being more than willing to come to some arrangement?

In all 6 of my letters to Capital One I always made it very clear that I was willing to make payments albeit at reduced amount until my financial situation improved.

 

Once again thanks for taking time out to have a look.

Thats ok missworry

Glad to be able to help! and looks like you got a few other visiters now!

It would be worth it like others say doing them a cca requset ,I posted up standard template letter above for this type of request.Just send it of with a £1 postal order and dont sign it,They should reply to this request within about 12 working days,If your card is ten years old very worth sending request as a lot of banks seem to have problems providing compliant agreements from that time scale;)

 

Its still worth pursuing the sar request as well as it can be used for claiming unfair charges if you wish to do that at some point plus you get a lot of information about your account which may come in handy in furture ,True sar is another way of getting a look at credit agreent but sending a s78 cca request a lot quicker way of getting sight of it and they supposed to respond in 12 days So after 12 days if they not responded or they fob you off with a dodgy or incorrectly executed agreement or some unsigned ts and cs that many of these banks do with cca requests from your time scale,You will be well within your rights to send an account in dispute letter to both crapital one and any second line pond feeders they pass you on to!

[missworry]

CCA them for sure, check Sunflowers thread for a few of the so called agreements.

 

Dont be intimidated by them, in my experience of credit cards they are by far the worst for constant phone harassment and seem to have the least intelligent phone staff.

 

Odd that your accounts been moved on, have you recieved an actual default notice?. I'm about 14 weeks and £1200 in arrears and am yet to receive a default either.

 

In the meantime take it easy, dont let them get you down, youve been reasonable theyve been anything but, you'll deal with the matter much better when youre well slept.

 

 

Hi,

 

Thank you for your encouragement and support

- in answer to your question regarding a default notice

I'm not 100% sure but I will look and get back you to on that one.

 

 

I made my last proper payment to them roughly about November 09

so I guess I should of been sent a notice by now?

Once again, thank you:)

 

Its still worth pursuing the sar request as well as it can be used for claiming unfair charges if you wish to do that at some point plus you get a lot of information about your account which may come in handy in furture ,True sar is another way of getting a look at credit agreent but sending a s78 cca request a lot quicker way of getting sight of it and they supposed to respond in 12 days So after 12 days if they not responded or they fob you off with a dodgy or incorrectly executed agreement or some unsigned ts and cs that many of these banks do with cca requests from your time scale,You will be well within your rights to send an account in dispute letter to both crapital one and any second line pond feeders they pass you on to!

 

Hi Sunflower99,

 

What can I say? You're a real star I cant thank you enough for the template and I will send the CCA (now I know what it is) asap.

I am a little concerned however that in my previous letters to Capital One I have signed a couple of them including more recently the sar - the general consensus here appears to be that you shouldn't sign?

 

Cheers Sunflower99 you're a life saver:)

[sunflower99]

I must admit it is always advised on these forums to try and avoid signing things as much as possible.

 

However in many cases they do anyway have a sample of a signatuers on an incorrectly executed application form so many cases they do have samples of it already,

 

any organisation silly enough to try and do anything dodgy with a persons signature would be guilty of fraud and risking quite a lot! but of course look very carefully at any signed things any organisation sends you,

 

The general advice on cag is if you have to sign anything from now on try to vary your signature a bit so it looks a bit different and you can correctly idntify it ie you could add another letter to it do a few extra squiggles and lines through it ,

 

Another tip is also to write it over some patterenrd paper or do some symbols under it like type a few crosses and sign over crosses! like this xxxxxx some other symbol under it;)!

 

There are also some programs you can use to create you own digital signature that some caggers use.

But there is absolutely no obligation to sign a s78 cca request

and i got all my responses including crapital ones with out sighning for it!

 

http://www.consumeractiongroup.co.uk/digitalsignature.php

Here is a link about how to get a signature,it is sponsored by cag!

 

Dear Sir/Madam

 

RE Account-

Thank you for your letter dated -----2009 in connection with my subject Access Request.

Your letter requests "For security reasons we require you to provide a form of positive identification (an example of acceptable identification would be a copy of a driving licence or passport which includes your signature), before you comply.

 

To the present date you have easily sent statements and correspondence containing my sensitive and private statements and personal financial information to my address. I am asking myself now why all the concern regarding security regarding my information, and why you are doubting that I am not the right person? I request the reasoning behind the length of time for you suddenly to be worried about this.

 

I am confident an organisation the size of MBNA are aware, disclosing data without adequate checks of identity is contrary to the 7th principal of data protection, listed in schedule 1 of the Data protection Act 1998:

 

7. Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

 

I would like to advise that clarification with Government bodies assured me that this is purely MBNA's own internal proceedures, and not really required.

 

I am concerned that I do not hold either a passport or drivers licence, and even if I did, in today's society about taking care of our personal information, I am not happy in sending in the post anyway.

 

I am sure that an alternative compromise can be sought, either you accept I am who I am, or you can offer me alternatives that I will find acceptable. If this cannot be resolved I will contact the Information Commissioners Office.

 

I look forward to hearing from you in writing within the next 7 days.

 

Yours faithfully

 

i thought this a handy letter for you to see if you come up across any problems with any of your credtiters attempting to ask for any documentation or demanding a signature in any sar or s78 or other data re requests You could amned it to suit and ask them why they need indentification or signature when they been happy to supply personal information to your address with out proof or you asking or signing any requests!

 

I did have a problem with one of my banks refusing to send me a sar request with out any documentation but i sent the above letter and arranged to phone the banks customer services dept to amswer a few securituy questions over phone to confirm my request and got sent my sar within a few weeks from them.If you give security details over phone to them on a number you phone them on there is no excuse for them stall you by demanding documents or signed letters.

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/110578-digital-signature-guide.html

Another link about digital ignatures

[missworry]

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/110578-digital-signature-guide.html

Another link about digital ignatures

 

Wow! You have given me so much info which is so useful. I know I keep on typing thank you - but THANK YOU

In times like this and because of my lack of experience in these matters it really makes a big difference getting this type of support.

I would normally have to either pay money for the advice you have given, alternatively spend hours on the internet doing searches.

With the help you have given me alone I can quite confidently that I will be making a donation to this site.

 

Cheers Sunflower you're a Star

[sunflower99]

Hi Missworry!

Thanks! I am just glad to be of help and i remember what it was like myself starting out on these forums not knowing where to start and what to do so like to offer help and share any knowledge i gain where i can!

[missworry]

Hi,

 

Roughly 4 weeks ago a made a request for copy of my CCA from Capital One

recently I have received their reply.

 

 

It is true they have provided me with a copy my signature (dated 2002)

but they were reluctant to provide me with the full copy of the CCA that was signed at the time?

 

 

They did give me some kind of explanation as to why within their letter saying there was a court case in Carey v HSBC [2009] permitted them not supply the original CCA in full?

 

Today whilst looking through some old paper work I stumbled across the original letter that was attached to my credit card when it was sent (terms on the reverse).

 

Looking at my original agreement are their terms enforceable or can I simply walk away from this liability as the agreement inst in line with current EU laws? If so how do I go about it?

 

Many thanks

Edited June 14, 2010 by missworry

[sunflower99]

Hi missworry

I am a bit confused !which paper is the one you signed?

 

All i can see is a letter and some unsigned ts asnd cs,

 

Are you saying these ts and cs were signed at bottom ?

 

To be correctly executed a cca should have signature on same document as ts and cs

and Crapital one i have heard on good authority have destroyed a lot of original agrements drawn up before 2004

and possibly even later!

 

so crapital one mainly only got microfilches,

Those ts and cs you got are not signed are they?

 

could you indicate which paper is signed?

As yours is a bit strange as normally they try and fob people off with a signed application form sent along with some ts and cs they imply are on reverse from cards taken out in your year?

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/162851-consumer-credit-agreements-guide.html

 

The above link is a great thread produced by one of the site managers about ccas and worth a read

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/172543-just-recieved-signed-capital.html

 

This is my crapital one thread! i am afraid it is quite a long thread! but it does conatain quite a lot of information about crapital one alleged agreements and various other peoples experiences with crapital one! May be of help to you too!

[Craigbadger]

That'll be your current agreement that youve scanned.

Have you posted up what they sent as your original agreement?

More than likely totally unenforceable.

 

Those letters are very confusing as Cap 1 did have a phamflet called "Your agreement" and also the bit you signed was "Credit agreement" and the letters are all over the place.

 

The reconstitued agreements seem to be t&c with customers name and address printed on.

Nobody knows whether the signature page had anything else attached to it.

Edited June 11, 2010 by Craigbadger

[missworry]

Hi missworry

I am a bit confused !which paper is the one you signed?All i can see is a letter and some unsigned ts asnd cs,Are you saying these ts and cs were signed at bottom ? To be correctly executed a cca should have signature on same document as ts and cs and Crapital one i have heard on good authority have destroyed a lot of original agrements drawn up before 2004 and possibly even later! so crapital one mainly only got microfilches,Those ts and cs you got are not signed are they?could you indicate which paper is signed? As yours is a bit strange as normally they try and fob people off with a signed application form sent along with some ts and cs they imply are on reverse from cards taken out in your year?

 

Hi Sunflower99,

 

Thank you for you reply.

 

I'm sorry that I didn't explain clearly in my previous post.

Capital One sent out a copy of my signature which was dated along with new t&c's not the originals (not included in my post).

 

 

The terms that you see in the pdf are that of which appeared on the reverse of the paperwork when my credit card was issued but which is not signed.

 

Today I received the SAR that I requested back in April (naturally they have dated the cover letter so it appears to of been written in April ).

 

In a addition to this I have a letter from HL LEGAL Solicitors informing me that CapQuest Debt Recovery has appointed them and if by 17th June the account is not paid in full or a satisfactory proposal for settlement is reached court proceeding may be issued against me:-o

 

That'll be your current agreement that youve scanned.

Have you posted up what they sent as your original agreement?

More than likely totally unenforceable.

 

Those letters are very confusing as Cap 1 did have a phamflet called "Your agreement" and also the bit you signed was "Credit agreement" and the letters are all over the place.

 

The reconstitued agreements seem to be t&c with customers name and address printed on.

Nobody knows whether the signature page had anything else attached to it.

 

Hi Craigbadger,

 

Thank you for the imput.

 

I have attached the CCA that Capital One sent recently. It bears no resemblance to the terms that I signed in 2002 - page 6 in the pdf is the only original document (copy).

In your opinion are these terms unenforceable?

CCA agreement.pdf

[Craigbadger]

I would say fairly positively that, that is NOT enforceable.

 

The signature needs to be on the same page as the key terms or atleast link to them of which it does neither.

And even then they must be within the same sheet.

 

They have sent you the signature page from your application and a few pages of freshly typed t&c.

 

Might be worth while posting on the DCA forum to see if someone would take a look as thats where the CCA experts seem to be, maybe just link to here. They will tell you how to deal with them.

 

 

Debt Collection Industry - The Consumer Forums

 

Sorry reworded that.

 

In my opinion Unenforceable.

[missworry]

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/172543-just-recieved-signed-capital.html

 

This is my crapital one thread! i am afraid it is quite a long thread! but it does conatain quite a lot of information about crapital one alleged agreements and various other peoples experiences with crapital one! May be of help to you too!

 

Hi Sunflower99

 

Thank you for the links - lot to read, hard going:confused:

I'm sure to finish reading sometime tonight.....or tomorrow.

 

I do appreciate all your help thus far.

[sunflower99]

Hi missworry

Like craigbadger says ! sounds like an unenforcrable, cca and Crapital ones from 2002 will be rubbish! and they destroyed the original.However you wuill need to make them aware you konw your rights as they will countinue to inist what they got is enforecable ,If i were you i would send of a account in dispute letter to capuest ASAP as Capquest can be very persistant,Lots of other caggers in Crapone fan club have seen of capquest but you wil need to send themn letters making it clear you know your rights

 

Account Number

Account In Dispute

Re; Barclaycards recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I am writing to say that i made a request to Barclycard on ---2009 under section 77-9 of the Consumer Credit Act 1974 for a true copy of my agreement

I note that they have replied to the above by sending their companies current terms and conditions I must inform you that this is not sufficient to comply with the request and that the company is still in default under the act..I wrote to Barclaycard on ----2009 informing them of this.

 

To clarify, just sending the terms and conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a "true copy" of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, "the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form." This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Please be advised that I will only communicate with you in writing. I have noted your repeated attempts to contact me by telephone over the past few weeks/months and these have been duly logged by time and date.

 

Furthermore, should it be your intention to arrange a "doorstep call", please be advised that under OFT rules, you can only visit me at my home if you make an appointment and I have no wish to make such an appointment with you.

 

There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v Sheppard & Short Ltd [1959] 2 QB 384

. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you, or your representatives to visit me at my property and, if you do so, you will be liable to damages for a tort of trespass and action will be taken, including but not limited to, police attendance.

Yours Faithfully

[missworry]

I would say fairly positively that, that is NOT enforceable.

The signature needs to be on the same page as the key terms or atleast link to them of which it does neither. And even then they must be within the same sheet.

They have sent you the signature page from your application and a few pages of freshly typed t&c.

Might be worth while posting on the DCA forum to see if someone would take a look as thats where the CCA experts seem to be, maybe just link to here. They will tell you how to deal with them.

 

 

Debt Collection Industry - The Consumer Forums

 

Hi Craigbadger

 

Thank you for looking at my credit card agreement. I was pleased to get your opinion - I will follow your suggestion and post on the DCA.

[sunflower99]

Dear Sirs,

 

Account no

 

 

 

 

 

Re: my request under the Consumer Credit Act 1974

Thank you for your recent letter sent to me, the contents of which are noted. I appreciate your quick response to my original letter. However, the reply received by me does not fulfill your requirements under the Consumer Credit Act 1974.

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter.

My request remains outstanding. An unsigned credit agreement with no personal details on it, like the one you sent in your reply, does not constitute a true copy of any credit agreement that may or may not have been signed by me on the opening of this account. A blank agreement neither confirms that I am liable for any alleged debt to you, nor gives me any chance to evaluate whether any original agreement was ‘properly executed’.[/font]

I still require you to send me a true copy of the original credit agreement that you allege exists. As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

You had until ??/??.2009 (12+2 working days after the request was made) to provide me with the true copy I requested. You are now in default of my request. Any account I hold with you is now in legal dispute. Whilst the account remains in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you. Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agency.

To register information with a credit reference agency, you must have written consent from the customer to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. Any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office the time limits, which are laid down in the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 are clear. You must supply an executed credit agreement within 12 + 2 working days of a proper CCA request. If you fail to comply with a legitimate request the account enters a default situation.

To sum up, I will not be making any further payments to you until you provide me with the document I have requested. Whilst you remain in default of my request, you are not permitted to take any action against this account. This includes adding further charges and passing any information to the credit information industry.[/font]

I expect you to write to me confirming that the account has been closed and no further action will be taken.

I look forward to your reply.

 

Yours faithfully

__________________

 

Account In Dispute

 

Account number

 

Re Your recent reply under section 77-79 of the Consumer Credit Act 1974

I note that you have replied to the above by sending copies of your companies current terms and conditions.I must inform you that this is not sufficient to comply with the request and your company is still in default under the act.To clarify just sending the terms and conditions is a breach of the Act,The copy must be a true copy of the original agreement

 

You attention is drawn to the fact that this account is subject to a serious dispute. On ----2010 I requested your company to supply me a copy of the credit agreement covering this account pursuant to the Consumer Credit Act 1974 section 78. To date you have failed to comply with my request sent by recorded delivery . Without production of the said agreement I am unable to assess if I am indeed liable for any alleged debt to you or your company, nor does it give me any chance to evaluate whether any original agreement was ‘properly executed’ as required by the Consumer Credit Act 1974

 

 

For the avoidance of any doubt I have included section 78(1) and 78(6) of the Consumer Credit Act 1974, which states…

 

78 Duty to give information to debtor under running-account credit agreement

(1) The creditor under a regulated agreement for running-account credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of [£1], shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,—

(a) the state of the account, and

(b) the amount, if any, currently payable under the agreement by the debtor to the creditor, and

© the amounts and due dates of any payments which, if the debtor does not draw further on the account, will later become payable under the agreement by the debtor to the creditor.

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement; and

(b) if the default continues for one month he commits an offence.

 

 

 

Clearly as no agreement was supplied on request, this in no way complies with the requirements of the Consumer Credit Act 1974 and I now draw your attention to section 78 subsection 6 which states If the creditor under an agreement fails to comply with subsection (1) he is not entitled, while the default continues, to enforce the agreement;

 

Clearly this is a situation as described in s78(6) Consumer Credit Act 1974 and the debt is unenforceable at this time. In addition, I draw your attention to section 127 (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 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.

 

 

To clarify s61(1) states

 

(1)A regulated agreement is not properly executed unless—

 

(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and

(b) the document embodies all the terms of the agreement, other than implied terms, and

© The document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible

 

In addition the prescribed terms referred to in section 60 CCA1974 are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: - A term stating the credit limit or the manner in which it will be determined or that there is no credit limit, A term stating the rate of any interest on the credit to be provided under the agreement and A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following—

 

1.Number of repayments;

2.Amount of repayments;

3.Frequency and timing of repayments;

4.Dates of repayments;

5.The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable

 

 

Therefore based upon the Consumer Credit Act 1974 this debt as it stands is unenforceable and should this proceed to litigation, a court is precluded from making an enforcement order under section 127(3) unless a true copy of the signed agreement is produced..

 

At the point where this account entered into the default situation as described in s78 (6) CCA 1974 no other charges are allowed to be added until such time as your company become compliant with my request. As capital one are still not in compliance with my request I insist that the following takes place with immediate effect

 All charges levied since Default situation as described in s78(6)CCA 1974 be removed from the account and further charges cease until such time as capital one comply fully with my original request or such time as a court makes an enforcement order

 All entries which refer to missed payments be removed from my credit file

 All collection activities by your company cease with immediate effect until your company comply with my request made on 27th sept 08 or such time as a court makes an enforcement order

In addition, 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 have enclosed an excerpt from 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

 

What I Require.

 

I require that you send me a true copy of the executed agreement as required by the Consumer Credit Act 1974. If you are unable to supply the requested documentation because no such agreement is in existence I require written clarification as such.

 

I require that you comply with my request within 7 days of the date of this letter. I will not correspond any further with you until I either receive a copy of the requested documents as laid down in section 78(1) CCA 74 or clarification that such agreement doesn’t exist. I am advised that should you persist in pursuing this debt ignoring the above information you will be in breach of the Administration of Justice Act 1970 section 40 as well

 

No other correspondence will be accepted

 

Should you attempt litigation it will be vigorously defended and the failure to supply documentation under the CCA 1974 is a complete defence to any legal action and your actions will be vexatious and unlawful

 

 

I trust this out lines the situation

[missworry]

Account Number

Account In Dispute

Re; Barclaycards recent reply to my request under section 77-79 of the Consumer Credit Act 1974

 

I am writing to say that i made a request to Barclycard on ---2009 under section 77-9 of the Consumer Credit Act 1974 for a true copy of my agreement

I note that they have replied to the above by sending their companies current terms and conditions I must inform you that this is not sufficient to comply with the request and that the company is still in default under the act..I wrote to Barclaycard on ----2009 informing them of this.

 

To clarify, just sending the terms and conditions is a breach of the Act and Regulations as, apart from the information that the Regulations provide that you may exclude, the copy must be a "true copy" of the agreement.

 

This breach of the agreement can be demonstrated as follows;

As you will know section 180(1) (b) authorises, "the omission from a copy of certain material from the original, or the inclusion of certain material in condensed form." This refers to statutory instruments made under the heading Copies of document regulations and in this care in particular to SI 1983/1557.

 

Before leaving section 180 there are two other sections that should be remembered these are:

 

Section 2(2) (a) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not satisfied unless the copy supplied is in the prescribed form and conforms to the prescribed requirements;

 

And more importantly

 

Section 2(b) A duty imposed by any provision of this Act (except section 35) to supply a copy of any document is not infringed by the omission of any material, or its inclusion in condensed form, if that is authorised by regulations.

 

You will see that this quite clearly states that whilst certain items may be left out of the copy document the rest of the document must be in the form and contain all items as prescribed by the regulations.

 

Turning to the regulations regarding what may be omitted from these copies these are contained with SI 1983/1557.

 

The regulations state:

(2) There may be omitted from any such copy-

(a) any information included in an executed agreement, security instrument or other document relating to the debtor, hirer or surety or included for the use of the creditor or owner only which is not required to be included therein by the Act or any Regulations thereunder as to the form and content of the document of which it is a copy;

(b) any signature box, signature or date of signature (other than, in the case of a copy of a cancelable executed agreement delivered to the debtor under section 63(1) of the Act, the date of signature by the debtor of an agreement to which section 68(b) of the Act applies);

 

It is quite clear what can be omitted from the copy document, this again asserts that all other details of the agreement should presented in form and content as required by the regulations.

 

The requirements of the Agreement regulations 1983/1553 are very explicit in describing the form and content of an agreement and this as I have demonstrated also applies to the copy of any such agreement with the above mentioned proviso.

 

Nowhere within these regulations does it state that part of the agreement can be presented on a separate document headed terms and conditions.

It does state that all terms and conditions should be within the agreement document and is explicit of the form in which it is presented.

I hope this explains why your reply was unacceptable I await a True copy of my agreement and would remind you again that whilst the request has not been complied with the default continues

 

Please be advised that I will only communicate with you in writing. I have noted your repeated attempts to contact me by telephone over the past few weeks/months and these have been duly logged by time and date.

 

Furthermore, should it be your intention to arrange a "doorstep call", please be advised that under OFT rules, you can only visit me at my home if you make an appointment and I have no wish to make such an appointment with you.

 

There is only an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v Sheppard & Short Ltd [1959] 2 QB 384

. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you, or your representatives to visit me at my property and, if you do so, you will be liable to damages for a tort of trespass and action will be taken, including but not limited to, police attendance.

Yours Faithfully

 

OMG! That's fantastic! Where did you get this one from?

 

Sunflower99 If I was with you right now I'd buy you a drink - thank you:D

 

In the covering letter that I was sent by Cap One making reference to: Carey v HSBC as a reason to sending only part of the CCA that I requested back in April. According to Capital One they believe that they have complied to their obligation under S78 and provided me with a copy.

 

Judging from what you have just sent I take it they have not been compliant?

 

Many thanks

 

I have recently asked Capital One to supply me with a copy of my original credit card agreement. Capital One have sent me a copy of my signature dated 2002 (although my signature has been obscured for the purpose of posting on this forum). Unfortunately they have provided a new set terms and not the ones I would of signed to originally in 2002?

I have posted on the Capital One forum and it has been suggested by one of the contributors that I post it here too as some of you may be better qualified to assess if their agreement is unenforceable? (see pdf)

 

http://www.consumeractiongroup.co.uk/forum/capital-one/254627-third-party-debt-collection-2.html#post2977281

 

Many thanks.

[sunflower99]

Dear Sir/ Madam

 

ACCOUNT NO:

ACCOUNT IN DISPUTE

 

I am in receipt of your letter dated ------2010

In respect of documents you have supplied to me in your letter dated, -------, it would appear that you are of the belief that you have discharged your obligations under the Consumer Credit Act 1974 in particular section 78(1). This however, is not so, You have provided me with a copy of an application form and I feel it is my duty to draw your attention to the following :

 

 

1: Had you wished for an APPLICATION FORM to become a properly executed Agreement, you would have ensured that the documents sent to me for signature would have carried the correct title in the prescribed form as laid down in schedule 1 of the Consumer Credit (Agreements) Regulations 1983. I.e.

 

Credit Card Agreement Regulated by the Consumer Credit Act 1974

 

2: The Consumer Credit (Agreements) Regulations 1983 (S1 1983/1553) set out the form and content of agreements. For an agreement to be compliant with the regulations it MUST embody within the agreement, the prescribed terms laid out in the S1 1983/1553; without the prescribed terms the documents you have supplied do not conform to section 60(1)1974 and therefore cannot be properly executed as described in section 61(1) Consumer Credit Act 1974.

 

3: Neither of the documents supplied carry any reference to these terms. I wish to remind you that the absence of these terms will render a document unenforceable in court and I repeat, these terms MUST be contained within the agreement and NOT in a separate document headed terms and conditions or words to that effect.

 

4: There are no references on the document purporting to be the front page to indicate that the second document is linked in any way. This page also, is absent of any prescribed terms which would be necessary for the document to become enforceable.

 

You should be aware that a creditor is not permitted to take ANY action against an account whilst it remains in dispute. The lack of a compliant credit agreement is a very clear dispute and as such the following applies:

You may not demand any payment on the account, nor am I obliged to offer any payment to you.

You may not add further interest or charges to the account.

You may not pass the account to a third party.

You may not register any information in respect of the account with any Credit Reference Agency.

You may not issue a default notice in respect of the account.

If however you do still retain a copy of the original signed Agreement with all of the prescribed terms as laid down in the regulations, then I request to be allowed to view this at your offices.

 

You are reminded that should you choose litigation as your course of action, you will be required to provide the original document for the Court.

 

I reserve the right to report your actions to any such regulatory bodies as I see fit, including but not limited to Trading Standards, the Office of Fair Trading, the Information Commissioner’s Office, the Financial Ombudsman and my MP.

 

I respectfully request you review this matter in light of my comments above and I request that you supply me with the required information or alternatively confirm the account is closed and the debt written off with a zero.

 

I look forward to your reply within 14 days.

 

Hi Missworry

I have put up a few template letters i have used in my disputes.If you send one of those amended to suit your circumtances to capquest that will be a start and show them you know your rights:)

 

Unfortunatly crediters can and do often use a reconstitued cca to comply with a s78 request.However even if they have sort of complied with a s78 request ! it does not mean it is enforceable in court,Unfortunatly the carey case was a flawed judgemenr that seemed to confuse a s78 request with a request for a copy of an original copy of cca to prove enforceability in court .It is imprtant to realise that just because a request complies with a s78 request it does not mean it is enforceable in a court and this should be argued strongly in court if the defendant wants to use the defence that the agreement is incorrectly executed and unenforceable in a court of law.!!

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/240186-dissecting-manchester-test-case.html

 

This is a link to PriorityOnes excellent thread about carey case! It explains it well and gives a lot of ideas and arguments that can be used! Again it is a long thread! but the more reading you do the more knowledge you will have to fight back!

 

Also if you contact Beachcomber ! He is an expert on fighting of capquest! and is in cag crapital One fan club too!

 

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/158616-capital-one-cca.html

This is Beachys thread! If you Pm him I am sure he will look in on your thread to and help with advice on Capquest as well!

[cashins]

No it's not.

 

They have sent current terms and conditions which are not relevant to your CCA and a signature box from .......what?

 

I had the smae off them to years ago and not paid a penny since.

 

David

[missworry]

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/158616-capital-one-cca.html

This is Beachys thread! If you Pm him I am sure he will look in on your thread to and help with advice on Capquest as well!

 

I'm truly overwhelmed with the support and the advice you have given - thank you so much Sunflower99.

I will take your advice and Pm Beachy and for that purpose I will upload a recent solicitors letter who are acting under the instruction of CapQuest.

They are threatening to issue proceedings if they don't hear from me by the 17th June, any suggestions what I could write to them would be gratefully received.

In addition I will upload the CCA that Capital One sent me recently including the covering letter. One of my areas of concern is on the covering letter 4th paragraph page 1. 'We are currently in the process of retrieving a copy of your current agreement and we will send this to you shortly'

What is this all about as I have only ever signed one agreement with them and that was back in 2002:confused:

(page 8 of the pdf was signed and dated however I have obscured this detail for the purpose of posting on this forum).

 

When I send my letter to Capital One requesting a full copy of my CCA and making them aware we are now in a dispute over this matter will they then contact CapQuest & HL Legal instructing them to back off or do I have to write to all three separately?

 

Once again thank you so much and I do really appreciate your help.

H L Legal.pdf

CCA.pdf

Edited June 14, 2010 by missworry

[sunflower99]

Hi Missworry

Try not to worry though I know it difficult . many cag crapital one fan club caggers have successfully seen of capquest/Hl Legal,:DBut you just have to be prepared that capquest/HL legal will try it on and think they can frighten you into paying and unfortunatly it will involve a letter war to show them you know your rights,Unfortunatly they are unlikely to back of after fist letter disputing cca but you will still need to send it to show them you fully aware of rights and respond to all the theats they make as you must be prepared that you will be threatened with all kinds of threats including home visits legal action phone calls but just remember most caggers manage to see them off when they follow advice on cag ..So if i were you i would get one of the above letters amended to suit of to capquest to show them you know your rights ASAP and then evertime you get a new letter or anything happens post it up on this thread so caggers can advise you what to write next,Capquest and their scummy solictors normally eventually give up if you stand up to them but you need to respond to their threats and letter and need to send first dipute letter as soon as poosible ideally by recorded or special delivery so you got proof you sent it,After that i am sure Beaccomber will be able to advise you what follow up letters to send .If you can not get hold of Beachcomber carpinjoy is another person who sucessfully saw of capquet and got some useful letters from Beachy to send!