Off credit record but not time barred?

[board15]

Hi all,

 

I received a letter from Capquest saying they'd purchased an old unsecured personal loan debt from the original creditor.

 

Having checked my credit report, there is no mention of the debt. I do remember defaulting on the loan at the beginning of '01 so presumably the default record disappeared from my credit report after 6 years.

 

However, I'm sure I was in contact with a DCA about this during '02. I'll need to go through my records in detail but I probably did make some repayments until contact died off at the end of '02.

 

So I guess it's unlikely I can plead time-barred on this? But my main question, if my credit record no longer mentions this default do I have to settle with the DCA? Can they resubmit the information on my credit record? Or should I just approach it by asking for the CCA?

 

This is the first contact I've had with Capquest, is it likely that they'll have all the records associated with this debt? As my previous contact regarding this was with a different DCA back in '02. So potentially I could go for time-barred based on the date recorded on my credit report?

 

What if they come up with acceptable info in answer to the CCA, do I then have to acknowledge it or can I still attempt the time-barred route?!

 

Thanks in advance for your help; this site was a great find today!

[Finlay07]

They probably haven't anything on this alleged debt. It will be a bulk purchase of some sort. If you paid something in 2002 i doubt if you could go down the Statute Barred route, and they may re-register any default. Check your credit record in the comng weeks.

 

The best thing is to CCA them first, sit back, and see what they come up with.

[rory32]

You can only lawfully have a default placed an account once.

 

But I agree send them the CCA request. Are you in England/Wales or Scotland?

[lemma1968]

deleted - read wrong thread!!!!

[board15]

Thanks for your comments Finlay and Rory; I'm in England.

[Curlyben]

Remember, this debt could be stat barred.

If you have NOT acknowledged it, in writing or payment, in over 6 years the it will be.

Any telephone conversations concerning it don't count.

 

Now I'd be inclined to send Capquest a stat barred letter available here: http://www.consumeractiongroup.co.uk/forum/general-debt/20758-creditors-dcas-letter-templates.html

letter M.

This will put the ball firmly in Capquests court and make them prove otherwise.

[board15]

Hi guys

 

An update from August.

 

I CCA'd Capquest on 15 Aug 07. They responded on 23 Aug with an unbranded letter claiming to be proof that the original creditor had signed the debt over to them. It was clearly not proof of anything, so I responded as such on 30 Aug with a copy of my CCA request.

 

I heard nothing more from them until today! A letter dated 18 Oct 07 enclosing a copy of my original credit agreement and a statement of account. There is no deed of assignment from the original creditor to Capquest, but the credit agreement looks genuine - it's a copy of my personal loan agreement, with loan details including repayments and apr details, plus my signature.

 

Is this still valid even though they've clearly responded outside of the 12+month timescale?

 

The statement of acount shows my last payment as being Aug 02, so I can't go for time barred. But am I clutching at straws now to respond that they've still not provided a deed of assignment, plus they're already in breach of the 12+month timescale.

 

Thanks again for your help guys.

[Curlyben]

Can you scan a copy for us to validate for you.

There's certain things that MUST be present for the agreement to be enforceable.

 

 

S61(1)(a) CCA provides that, for a regulated agreement to be properly executed, it must contain all the prescribed terms of the agreement and conform to regulations under s60(1) – see Q1.14.

 

Reg 6(1) provides that the terms specified in Sch 6 to the Agreements Regulations are ‘prescribed terms’ for the purposes of s61(1)(a) and s127(3) – see Q8.2.

 

8.2 What if prescribed terms are missing or incorrect?

 

s127(3) provides that the court may not make an enforcement order unless a document containing all the prescribed terms of the agreement was signed by the debtor – see Q1.21.

 

If therefore any of the prescribed terms is missing, or incorrect, the agreement is not enforceable against the debtor, and the court is precluded from making an enforcement order.

 

 

8.3 What are the prescribed terms?

 

The prescribed terms specified in Sch 6 are as follows:

 

* amount of credit – see Q8.

 

* credit limit – see Q8.5

* repayments – see Q8.9.

* rate of interest – see Q8.6

 

Sch 6 was not amended by the 2004 Regulations.

 

 

Also check out Peter Bard's excellent thread on the subject: http://www.consumeractiongroup.co.uk/forum/general/103383-agreement-enforceability.html

[board15]

Thanks ben, this was a personal loan.

 

I hope its attached ok.

[clutchingatstraws]

A bit small can you re-post a bigger one

[board15]

try again.

 

It's a personal loan and mentions a credit agreement, the loan amount and repayments with apr. It is also signed and dated. That's all the requirements for a personal loan isn't it?

[Curlyben]

Right then time for some action.

If you are happy this complies then get a S.A.R - (Subject Access Request) into the original creditor and go for the charges that will of been applied to this agreement.

 

Now for CapQuest here's a short and sweet letter:

 

 

ACCOUNT IN DISPUTE

 

Dear Sir/Madam,

 

Your ref:

 

 

Thank you for your letter of DATE, the contents of which are noted.

 

 

I am disputing the total value of these debts with BANK due to unlawful and unreasonable charges. As such, therefore, I consider this account to be in dispute and no further action shall be taken until this matter is resolved.

As per OFT guidelines Section 2.8k "not ceasing collection activity whilst investigating a reasonably queried or disputed debt."

 

This process may take some time, due to the Office of Fair Trading's test case, but I will try to expedite this issue as a matter of urgency.

 

I hope that you will enter into a sincere dialogue with me about this matter and I am writing this letter to you on the assumption that you would prefer to do this than merely respond with standard letters and leaflets.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

At the end of the day you'd rather pay the OC the correct amount rather than some "nice" DCA

[board15]

Sorry, the image was too small both times I tried it. How do I insert the image directly to the message?!

 

Anyway thanks again Curlyben, looks like I'll be going down the SAR route now.

 

But what about the 12days + 1month time limit before the DCA is committing an offence? Even if they have now provided the right info can I claim they're out of time?

 

And is it worth pursuing the no deed of assignment route, because strictly speaking they still haven't proved the debt is their's to chase.

[board15]

Thanks for the SAR advice Curlyben.

 

I'm trying again to insert the credit agreement Capquest sent me after the 12 days + one month timescale; this time in a word doc. Does this look like the right info?

 

Even if they have now provided the right info can I claim they're out of time?

 

And is it worth pursuing the no deed of assignment route, because strictly speaking they still haven't proved the debt is their's to chase.

 

Plus what does fair processing notice involve?!

 

Thanks again.

B

Capquest CCA.doc

[board15]

Bump!

 

Regarding receiving CCA info after the 12 days + one month timescale:

 

Even if they have now provided the right info can I claim they're out of time?

 

And is it worth pursuing the no deed of assignment route, because strictly speaking they still haven't proved the debt is their's to chase.

 

Plus what does fair processing notice involve?!

 

Thanks.

[Curlyben]

Bear in mind the only information that MUST be supplied under a CCA is the agreement and a statement of account, anything else is optional.

 

** Deleted all the rest as I have posted it earlier **

[sequenci]

How were the payments made in '02?

 

Of they were via SO or DD, have you checked with your bank to ensure they are valid?

 

If you made them via another means the bank would need to prove the payments are in relation to you, it could be tricky for them to prove it. Remember that the Limitation Act puts the burden of proof on the creditor.

 

Get them to prove you made the payments, keep on disputing, make 'em work!

[make them aktiv runners]

I agree with Sequenci, the 2002 payments look a little suspect. If you had paid then surely your credit report would show it, they do not remove data unless they have to.

[tiglet]

Sometimes it has been suggested DCA's have credited an account in oredr to prevent it being statute barred - now really is the time to get those old bank statements out.

[board15]

Thanks guys.

 

I'll track down my old bank statements as any payments made would definitely not have been by DD or SO. Plus I'll also prepare an SAR response.

 

The only outstanding question I have now is what about the time limit of 12 days plus one month for a CCA request. What's the point in having a time limit, leading to them being in default, if they can then produce the info at a later time?

[board15]

Ok, 2 questions on my mind now!

 

What about the time limit of 12 days plus one month for a CCA request. What's the point in having a time limit, leading to them being in default, if they can then produce the info at a later time?

 

If I send my SAR to creditor and DCA will it reset the 6 year timescale as I must be fairly close to the time barred limit now?

 

Thanks again.

[tiglet]

1. Not entirely sure of the "point" but it as at this time that you can report them for non-compliance.

 

2. sending a SAR does not start the ball rolling again. You are basically asking for all information they hold on you - this is neither an acceptance or declination of the debt.

[board15]

Thanks Tiglet.

 

The DCA has responded with what seems like the correct info, but they did so 3 weeks after the 12 + 2 + one month timescale had elapsed. So technically they've committed a criminal offence. But if they've now produced the correct info are they no longer in default? Am I clutching at straws reporting them for non-compliance when they've produced the right info, albeit outside of the stipulated timescales?

[tiglet]

I always think it's worthwhile reporting them because it seems the only recourse we have.

[board15]

Another update:

 

I sent Curlyben's template 'account in dispute' letter to Capquest whilst I wait for a S.A.R - (Subject Access Request) response from the oc.

 

Capquest responded quickly with 'we can confirm upon signing your credit agreement, you will have agreed to all charges and interest on this account.'

 

The balance on the account statement they sent me with the CCA response matches the amount they're now claiming, but I'm still going down the SAR route to the oc because I genuinely question the authenticity of these figures.

 

Any suggestions how I should respond, if at all, to Capquest?! Do they have to wait until the oc answers my SAR request? And in the info the oc send me is it likely they'll also confirm once and for all that they sold this debt to Capquest? If so, will the info include how much they sold it for?!!

 

Thanks again.