My O/h & Capital One

[joe1965]

A few weeks ago I CCA'd Capital one for my wife as they have been hassling her to increase the monthly payments. I recieved this:

 

 

It is obvious that it is an application form and there is none of the pescribed terms on it.

So I sent this reply:

 

Dear sir or madam

 

Request for true copy of Credit Agreement under Sections 77/78 of the Consumer Credit Act 1974

 

I wrote to you recently requesting a true, signed copy of any credit agreement that exists in relation to the above account. This is my right under Sections 77 and 78 of the Consumer Credit Act 1974 on payment of the statutory fee of £1.00. This payment was included with my original request.

 

Under the terms of the above Act, a creditor has 12 working days to provide the requested document. Should they fail to do this, they have a further calendar month to rectify this default. Failure to comply within these timescales is a criminal offence.

 

Both of these deadlines have now passed and all I have received is an application form. This can lead me to only one conclusion, that being that no signed credit agreement exists in relation to this account.

 

As I am sure you are aware, an agreement that does not contain all of the prescribed terms, and/or is not signed by the debtor, is completely unenforceable, even in a court of law. This will be a complete defence to any court action that you may consider taking.

 

On the advice of the Financial Ombudsman, I am now requesting a final decision in this matter from you. Should this decision not meet with my satisfaction, then I will pursue the matter through the Ombudsman. The maximum timescale for you to give a final response to any complaint is 8 weeks. This time runs from the date of my original complaint, in this case that is the request for a true copy of the credit agreement.

Please note, you may also consider this letter a statutory notice under Section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with the credit reference agencies. Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’; you must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

There has never been any regulated agreement in relation to this account, and therefore you have never had my consent to process my data. I also do not see how you can state that you have a legitimate interest in processing my data as we have never had any contract that would enable you to do this.

 

Should you fail to respond within 21 days, I will expect that this means you agree to remove all such data.

 

Furthermore, you should remember that a creditor is not permitted to take any action against an account whilst it remains in dispute. The lack of a credit agreement is a very clear dispute and therefore the following applies:

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

You may not add any further interest or charges to this account.

You may not pass this account to any third party.

You may not register any information in respect of this account with any of the credit reference agencies.

You may not issue a default notice related to this account.

Be warned, the CCA 1974 is clear that a default can only be issued for breach of a valid, regulated agreement. If there is no agreement, as in this case, then you cannot issue a default as I have not breached any valid, regulated agreement.

 

I look forward to your final decision on this complaint within 21 days. This should include your proposed actions in relation to the lack of a credit agreement.

 

And today I recieved this back:

 

 

What should I do now? It seems that it is a stalling tactic because I've read other threads where the courts have thrown out Capital Ones claims in court where they have produced the application form and tried to pass it off as a credit agreement.

[birchave0]

don't worry, we've all had one of these letters, it's an application form!

write back to them pointing out which perscribed terms are missing (usually all of the!) and again ask for the copy of the true executed agreement, then tell them you are going to report them to the OFT, FOS and Information Commissioners Office for non complience. You can also ask if this is the document they intend to rely on to enforce any alleged account!

good luck!

[joe1965]

Is there a template anywhere which I could modify?

[Curlyben]

Just so happens I have this to hand.

 

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.

[joe1965]

Looking over the application form again I realized that something else was wrong.

Look at the date of signature of my o/h.

She signed it the day she was born. Does it have any bearing on the CCA?

Also the signature for Crap1 is rubberstamped.

[rubbishusername]

um, I can read most of your wifes details on that application form the blacking out hasn't worked... you might want to redo it or take it down?

[joe1965]

Done a re-edit.

What do you think of my comments on the last post?

[rubbishusername]

In theory I would have thought that would make a difference, but theory and reality... I'm sure someone who has experienced this before will come along soon to offer better advice/experience.

 

That said, I countersigned a passport application for someone and put my birthdate instead of the actual date (duh) and that wasn't acceptable. Had to do application again.

 

Glad you got the details out of the pic

[joe1965]

Capital have sold this to a Lowells. Looks like they are the one's who are now going to out of pocket.

[pt2537]

ACCOUNT IN DISPUTE

Dear Sir or Madam,

Account number: XXXX XXXX XXXX XXXX

 

I must admit that I am rather bemused as to why this account has been passed to yourselves, as it is in dispute with the **original creditor/DCA** and has been since DATE 2007.

Not only is this a breach of OFT collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998

 

My last letter from **original creditor/DCA** was DATE and intimated that my complaint would be

resolved on **DATE**, this obviously hasn’t happened.

As **original creditor/DCA** are now in default of my Consumer Credit Act request, OFT Collection Guidelines, *Subject Access request and have also breached *s10 Data Protection Act request , I consider this account to be in SERIOUS DISPUTE.

 

As you are aware while my Consumer Credit Act request remains in default enforcement action is NOT permitted, under s127 this constitutes a complete defence at law.

 

Now I would respectfully suggest that this account is returned to the **original creditor/DCA** for resolution of these defaults and breaches, as **New DCA** cannot lawfully pursue any enforcement activities.

 

If **New DCA** chooses to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.

 

I hope that this will not be necessary and an acceptable solution can be accomplished.

 

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

 

 

 

Hi

 

this often happens,

 

If Lowells start chasing you for the cap 1 debt the send em the above letter, edit it tro suit your own circumstance

 

that should shut em up

 

 

Regards

paul

[joe1965]

Since my last post I CCA Lowells as they had bought the debt from crap1. They sent the same application, I sent the same responce that it is not legal and heard nothing more.

But today in the post came this letter.

 

Spookily, about half an hour later there came a phone call from the very same people.

I informed him that Lowells had yet to comply with the CCA as all they had sent was the application form. He then got very obnoxious telling me it was enforceable and I must pay them or there would be consequences. In the end I told him to pi** off.

I have realized that Red and Lowells are one and the same by looking on these forums so I need to decide what to do.

I know it’s illegal for them to pass on a debt to another DCA (even if it’s the same one using a different name), while it’s in dispute.

Anyone got ideas? I’ve put too many hours in at work this week and my brain is like mush and not working very well.

.

[ukaviator]

Hi Joe

 

You should only communicate by letter from now on, as they will hassle you every day if you allow them to talk to you.

 

You should start off by telling them that the account is in dispute with Capital One, and has to remain with Capital One until the dispute is settled. Tell them to send it back to Capital One as it should not have been passed on.

 

Amend the letter PT2537 has posted above and send it to them straight away. Also report Capital One to the FSA, Trading Standards, OFT, and the Information Commisioners Office. They have ignored your dispute and attempted enforcement, when they cannot lawfully pursue any enforcement activities.

[joe1965]

Added a few bit's to it what do you think?

 

ACCOUNT IN DISPUTE

Dear Sir or Madam,

Account number: XXXXXXX

I must admit that I am rather bemused as to why this account has been passed to yourselves, as it is in dispute with the Capital One and has been since August 2007.

Not only is this a breach of OFT collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998.

 

As Capital One are now in default of my Consumer Credit Act request, OFT Collection Guidelines and have also breached *s10 Data Protection Act request, I consider this account to be in SERIOUS DISPUTE.

 

As you are aware while my Consumer Credit Act request remains in default enforcement action is NOT permitted, under s127 this constitutes a complete defence at law.

 

Now I would respectfully suggest that this account is returned to Capital One for resolution of these defaults and breaches, Lowell / Red cannot lawfully pursue any enforcement activities and neither should the debt have been sold on to a third party.

 

If Lowell / Red choose to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.

 

 

You may also be aware that you are also open to the possibility of being prosecuted under the Malicious Communications Act 1988. This makes it an offence to send a letter or other article which conveys a threat, or which contains information known to be false and the purpose of the letter is to cause distress or anxiety. The category of communications under this Act has now been expanded - by virtue of the Criminal Justice and Police Act 2001 - to include electronic communications or articles of any description. This new definition will also cover text messages such as sent by you on the 25th January this year.

 

I hope that this will not be necessary and an acceptable solution can be accomplished.

 

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

 

The only problem I have is since all this started I've lost all my data on a HDD including all my letters.

[The GodMother]

looks good to me remember to send by recorded delivery.

 

Chrissi

[Curlyben]

Also worth adding this line as well.

After taking advice, I am of the opinion that any continued pursuit is in violation of the Administration of Justice Act 1970 section 40 as well as breaching a number of the OFT Collection Guidelines

[joe1965]

I had one of the pond life phone us this evening. The wife told him I was acting on his behalf and I calmly informed him to send the CCA before he demanded payment and put the phone down.

About 30 seconds later the phone rang. Same bloke saying there had been a fault on the line so he'd phoned me up to discuss our options. I once again told him no CCA, no enforcement. He said we can't hide behind small technicalities and we would pay. He was so condescending and obnoxious (maybe because he was a Yank) I just told him to pi** off and put the phone down.

As it’s near the end of the month this guy must be near his bonus target because he phoned again!

He told me someone would be calling on my home. I told him they weren’t as they needed my permission under English common law, he just laughed and told me they didn’t and they would do as they pleased. I was seriously getting mad now and after a few well chosen Anglo Saxon comments I put the phone down on him.

Now this guy must be seriously close to his bonus because he phoned straight back telling me someone would be coming round and we would be paying them whatever we may believe. Now I totally lost it calling him everything under the sun.

He didn’t call back again though the wife is worried that they may make something of it if it went to court with recordings etc. I wouldn’t have thought they would because after the second call it should have been obvious I was hostile to him so he brought it on himself if he phoned back.

I’ve changed my letter slightly to include all this and will post it up for comments.

[pt2537]

 

 

Dear xxxx

 

Account Ref xxxx

 

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 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 and Short Ltd [1959] 2 Q.B. 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, then 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/sincerely,

 

 

 

 

if the Mc Muffin turns up on your doorstep, hand them that and then tell him or her to go away, politely of course:D

[joe1965]

ACCOUNT IN DISPUTE

Dear Sir or Madam,

Account number: XXXXXXX

 

I must admit that I am rather bemused as to why this account has been passed to yourselves, as it is in dispute with the Capital One and has been since August 2007.

Not only is this a breach of OFT collection guidelines, but also in breach of the Consumer Credit Act 1974 and Data Protection Act 1998.

 

As Capital One are now in default of my Consumer Credit Act request, OFT Collection Guidelines and have also breached S10 Data Protection Act request, I consider this account to be in SERIOUS DISPUTE.

 

As you are aware while my Consumer Credit Act request remains in default enforcement action is NOT permitted, under S127 this constitutes a complete defence at law.

 

Now I would respectfully suggest that this account is returned to Capital One for resolution of these defaults and breaches, Lowell / Red cannot lawfully pursue any enforcement activities and neither should the debt have been sold on to a third party.

 

If Lowell / Red choose to ignore my dispute and attempt enforcement, I will initiate legal action and file reports with the appropriate authorities, including, but not limited to, Trading Standards, Office of Fair Trading, Information Commissioners Office, Financial Ombudsman Service and possible court action.

 

Please note that I am only prepared to communicate with you in writing. I am of the view that if you continue to harass me by telephone it will put you in breach of Section 40 of the Administration of Justice Act 1970, and the Protection from Harassment Act 1997.

Should it be your intention to arrange a "doorstep call", please remember that there is only an implied license under English Common Law for certain people to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v. Sheppard and Short Ltd [1959] 2 Q.B. per Lord Evershed M.R.).

 

Please therefore take note that, I revoke license under English Common Law for you, or your representatives to visit me at my property and if you do so without my permission, you will then be liable to damages for a tort of trespass.You would also be liable for conspiring in a tort of trespass by acting in defiance of my instructions and sending someone to visit me nevertheless. Should it be necessary, I will obtain an injunction.

 

 

You may also be aware that by your actions you have opened up the possibility of being prosecuted under the Malicious Communications Act 1988. This makes it an offence to send a letter or other article which conveys a threat, or which contains information known to be false and the purpose of the letter is to cause distress or anxiety. The category of communications under this Act has now been expanded - by virtue of the Criminal Justice and Police Act 2001 - to include electronic communications or articles of any description. This new definition will also cover text messages such as sent by you on the 25th January this year.

 

I hope that this will not be necessary and an acceptable solution can be accomplished.

 

I would appreciate your due diligence in this matter.

I look forward to hearing from you in writing.

 

 

Any comments before I post?

[The GodMother]

yep.

 

Dont sign it and send by at least recored delivery.

[joe1965]

Checking on o/h Experian account tonight and found that the Cap1 account has been settled and she now has another in default with Lowells.

This must surely be illegal? With the account being in dispute with Cap 1 they have no right to sell it let alone pass data to a third party. Knowing Experian it will be a real struggle to get it removed. Any ideas anyone?

[joe1965]

Bump.

[The GodMother]

Hi Joe.

 

Your wife needs to do the following with ANY disputed account on her credit report.

 

Write to the CRA giving the details of the credit report entry and then explain to them the account is in dispute and she wants a notice of correction put on the account until this dispute is resolved she can also request that the CRA helps get the deafult removed. SHe will need to explain what the deafult is.

 

One letter per incorrect entry.

[joe1965]

Thanks Godmother.

[The GodMother]

YW joe.

 

I know i put your wife but this does also apply to you and anyone else who is having this problem.