Hoist/Cohen Claimform - old Cap1 Card debt - Statute Barred?

[harlequin10]

Hi

 

I would like some advice please.

 

I have 2 credit card accounts with Capital One that I was defaulted on in 2007 despite paying regular, agreed, reduced monthly payments.

 

The debts were then passed onto Robinson Way.

 

I have requested CCA's from Robinson Way and all they have sent me is the application forms, so they just keep ringing and writing and I keep ignoring and not paying.

 

Anyway am I now in a good position to offer a full and final settlement and if I do and they refuse will it mean that I have admitted the debts, etc?

 

I want the defaults removed from my credit file too, is that possible or not? If it's worth a go then how do I go about it?

 

Any help will be greatly appreciated!!

 

Harlequin

[lickthewallfatboy]

why pay someone for not having an agreement?

 

tel them to sod off into the night

[harlequin10]

why pay someone for not having an agreement?

 

tel them to sod off into the night

 

I know what you mean but I really want to clear up my credit file and i've been told that a satisfied default will look better, especially as it's 2007 and I will have to wait till 2013 before its gone!!!

[lickthewallfatboy]

there's a case being prepared at the moment against another DCA

 

if it succeeds,you may well find it much easier to wipe out incorrectly placed defaults

 

all I can say is,if it were me,they wouldn't get a penny from me

[mr.ton]

I agree with you LTFB.

Even if you were to pay up - the DCA would still do something on your credit file, they are vindictive in that way.

Robinson Way epitomise that vindictiveness.

They will slap a default on regardless

Do not be fooled by anything they tell you in future as i suspect RW have told you that it will "look good" if you pay up.

They have no agreement i assume..so tell em to get lost & slap them for compensation if they do hit on your credit file.

Save the money or go have a good night out or something

[maroondevo52]

I know what you mean but I really want to clear up my credit file and i've been told that a satisfied default will look better, especially as it's 2007 and I will have to wait till 2013 before its gone!!!

 

I don't think it matters a jot if it's satisfied or not.

 

A default's a default, IMHO.

 

Regards.

 

Scott.

[harlequin10]

Ok, point taken, so no-one thinks I should pay them off!!

 

It was my bank manager who told me that a satisified default looks better to a lender, when I was enquiring about a mortgage.

 

So what about getting the Default removed from my Credit File on the grounds that they don't seem to have an agreement, is it worth a go?

[nosnibor]

Hi Harlequin

 

I have to agree with maroondevo in my experience when checking a credit file lenders will just count the number of defaults they don't even go as far as looking to see if they are satisfied.

[lilly white]

i have found that they will come to you with an offer in due course

if you can wait till around Sept/october however you could test the water

with a sample letter that cant be used in court.

 

if i was in your position i would get your ducks in a row and keep your

power dry

 

Best regards lilly

[harlequin10]

i have found that they will come to you with an offer in due course

if you can wait till around Sept/october however you could test the water

with a sample letter that cant be used in court.

 

if i was in your position i would get your ducks in a row and keep your

power dry

 

Best regards lilly

 

Hi Lily

 

Thanks for your advice but I don't really understand what you mean about the sample letter, please could you explain.

 

Sorry to appear a bit thick!!

[harlequin10]

Hi

 

Can anyone help me?

 

I need to know if I can get a default removed from my credit file on the grounds that its invalid, but not sure if it is!!

 

In 2004 I got into trouble with a Capital One credit card and just couldn't afford to pay the full amount each month. I managed to agree a reduced monthly repayment plan with them.

 

4 May 2007 they sent me a letter stating I had broken my payment plan (I had missed a few payments), I ignored this letter!

 

25 May 2007 they sent me another letter stating I had 28 days to bring my account up to date or they may issue a default.

 

31 May 2007 I paid the overdue payments.

 

20 June 2007 I pay my monthly payment.

 

27 July 2007 they sent me a letter stating that they haven't received the information they have been asking for and after 28 days they may issue a default. ??? I ignored this letter as assumed it had been sent in error.

 

1 August 2007 I pay my monthly payment.

 

24 August 2007 I receive a Notice of Default served under section 87(1) of the Consumer Credit Act 1974. (The balance shows that I had paid since their last letter) They were asking me to pay the balance of the account!!!! no arrears were mentioned. It stated you have breached your Capital One Credit Card Agreement by failing to pay us the minimum monthly repayments described in clause 8 of the agreement. You must pay the amount overdue, shown above. This payment must reach your Capital One account within 23 days of the date of this letter. etc, etc

 

3 September 2007 I pay my reduced monthly payment!!

 

18 September 2007 I receive a Statement of Default, the balance shows I made a payment in September. It states that as of the 17/09/07 you defaulted.

 

October 2007 I receive a letter from Capital One stating they are currently dealing wth my account and I must continue to make payments to them.

 

30 January 2008 Capital One accept my reduced payment plan and I continue to pay on the dot each month.

 

26 June 2008 Capital One sent me a letter stating they have sold my account to Robinson Way.

 

1 July 2008 Robinson Way sent a letter stating that my account has been assigned to them. Once again I agree to a reduced payment plan.

 

16 September 2008 I send Robinson Way a request for my CCA.

 

13 October 2008 they send me an application form!!!

 

I have not paid them a penny since and have enjoyed reading the rubbish that they contine to send me!

 

What I would like to know is if Capital One have followed the correct procedures with regards to the Default?

 

If they haven't what do I do next as I want to fight this default and get it removed from my credit file.

 

Thanks for taking the time to read this!!

 

Kind regards

 

Harlequin

[silverfox1961]

Hi,

This is just my opinion and others will probably disagree on some points.

 

Initially Crap1 did follow procedure. You failed to make some reduced payments therefore, your reduced payment arrangement came to an end.

 

Crap1 sent you the demands to make up the arrears. What it should have said was to make up ALL the arrears, not just your reduced payment arrears.

 

They then defaulted you. Any chance of posting up the DN (minus personals of course but leave the dates in)

 

As you state, the default notice was for the full balance. As your account hadn't been terminated at that point (had it?) they should only have asked for the arrears, not the full balance. Therefore, an invalid DN.

 

You can try the complaints route but I think you will get turned down. The only way I have seen is to take them to court although there are a couple of cases where this wasn't nescessary.

 

The upside of this is that at the moment (and assuming Robbers Way have absolute assignment) the account was terminated on the back of a faulty DN. This is unlawful rescission meaning they can only claim the arrears IF they can supply a fully enforceable agreement.

 

 

fox

[harlequin10]

Hi Silverfox

 

I would love to show you the Default Notice but not sure how to do it!!

 

Can I just clarify that you think the Default Notice is invalid as it demanded the full balance and not the arrears?

 

The account was terminated and assigned to Robinson Way after the faulty Default Notice was sent.

 

Do you know if there are any template letters on this site that I could send to Robinson Way to challenge this default? Not sure I would be confident enough to take them to court so would really like to try other options first.

 

Thanks for your help.

[cerberusalert]

Did the arrears add up to the full balance they demanded, if not, by demanding the full amount they had in fact unlawfully rescinded the agreement because they had not given you the opportunity to remedy the situation. They have underlined the unlawful rescission if they sent you a further termination letter.

 

All they were entitled to legally were the monies due at the time of the default.

 

If you scan the DN or take a digital picture of it using 'macro-mode', remove identifying details, upload them to TinyPic - Free Image Hosting, Photo Sharing & Video Hosting & then copy and paste the URL back here we'll be able to see them.

 

On the Tinypic page left click the 'choose' button & a seperate window will open, choose which file you want to upload and left click 'open', the window will close then left click 'upload now' button. Your document will upload to tiny pic & the page will refresh giving a list of links. Just copy & paste the Url link back here & we'll be able to see it.

[silverfox1961]

If you scan your documents and then use paint to hide your details, you can then upload the documents using the paperclip in the post reply box OR you can use this method.

 

http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/158645-how-upload-images-scanned.html

 

As I understand it, a default notice is sent to inform you that if you don't pay the arrears to put yourself back in the position before a DN is issued, a default will be registered but if they send you a DN which asks for the full balance, (unless you are rich) you will not be able to rectify the default. This is unfair practice.

 

There is this letter you could send:

http://www.consumerforums.com/resources/templates-library/86-debt-collectors/586-legal-notice-issued-under-section-10-of-the-data-protection-act-1980

 

This only attempts to get then to stop using your data. You can add and delete bits to suit your needs.

 

I did see letters that demand removal of the DN but my pc died spectacularly last week and after a VERY expensive repair/upgrade I have lost all my bookmarked pages.

[harlequin10]

Hi

 

Thank you both.

 

I hope this attachment works!!

 

I can't say how much the arrears would have been as they stopped sending me statements.

 

kind regards

 

Harlequin

Edited February 7, 2010 by harlequin10
attachment removed

[silverfox1961]

The only way to find out exactly how your account stood at termination is to SAR Cap1.

 

I have just been looking at my statements when I was with them and they do show minimum payments required. You should be able to work out the arrears from that.

 

If you do decide to SAR them, this is one letter you could use:

 

http://www.consumerforums.com/resources/templates-library/86-debt-collectors/576-subject-access-request-debt-a-dca

 

Most (if not all) creditors are now asking for signatures. I would sign the letter but make it ever so slightly different to your normal one so if it happened to appear on an agreement,you could screw them as well. You could put a couple of crosses through it or use an anti signature template.

[alfwithhair]

Hi

 

Thank you both.

 

I hope this attachment works!!

 

I can't say how much the arrears would have been as they stopped sending me statements.

 

kind regards

 

Harlequin

 

You have left the reference numbers visable. You can also be traced from the bar codes you have left showing on the default.

 

Best to remove them as the Creditors monitor this forum regulary.

[harlequin10]

Whoops!

 

Thanks Alf, attachment removed!!

 

Regards

 

Harlequin

[fuzzybobble]

http://www.consumeractiongroup.co.uk/forum/legalities/24013-defaults-proposed-method-removal.html#post187269

 

This thread has some good templates for getting defaults removed. As once the agreement is terminated, then so is their right to process your personal data ie: updating your credit file defaul info each month.

 

The letter you need is the one to send to Capital One and not the Credit Reference Agency one.

 

Been researching this all day for a friend who is trying to get a Littlewoods default removed.

[harlequin10]

Thanks Fuzzy I will give it a go and see what happens.

 

Should I send the letter to Robinson Way as Capital One sold the debt to them?

 

Harlequin

[harlequin10]

Hi

 

Sorry if i'm being a bit thick but i'm still confused, has anyone any further thoughts on this?

 

Do I write to Capital One or Robinson Way who bought the debt.

 

Should I ask that the Default be removed from my Credit File because:

 

a) The Notice of Default was invalid as it demanded the full amount not the arrears?

 

or

 

b) Capital One have not supplied me with a Credit Agreement?

 

Thanks in advance for any help.

 

Regards

 

Harlequin

[silverfox1961]

Your request needs to go to Robbers Way as they now own the debt.

 

I would point out that it was because of an invalid DN and subsequent unlawful rescission of contract that the DN should be removed.

 

You should also state somewhere in your letter that you accept the unlawful rescission.

[harlequin10]

Thankyou silver

 

What exactly does unlawful rescission of contract mean and is there any legal info that I could quote? Never heard of it before.

 

Are there any documents that I could read so I sound like I know what i'm talking about when I write my letter?

 

Why do I have to say that I accept it?

 

Can I still use Fuzzybobbles letter?

 

Sorry! so many questions!

[cerberusalert]

You could tell them to read the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983, and that a failure of a Default Notice or Termination Notice to be accurate not only invalidates such notice (Woodchester Lease Management Services Ltd V Swain & Co NLD 14 July 1998 but it is an unlawful rescission of contract which would not only prevent the court enforcing any alleged debt (Wilson V First County Trust Ltd [2003] UKHL 40, Wilson V Robertsons (London) Ltd [2006] EWCA Civ 1088, Wilson V Pawnbrokers [2005] EWCA Civ 147) - but would also give the claimant a claim for damages in the sum of £1000 (Kpophraror V Woolwich Building Society [1996] 4 All ER 119).