SD Capital One Help

[Main man]

Hi

Just looking for some advice in regards to a SD that has been received for a Capital One CC.

Brief history, this account has been in dispute for over two years and has been passed around various DCA's before being sold to Lowell late last year. Lowell have continued chasing despite only being able to supply the 'short application' that has none of the pescribed terms.

The SD was served nearly ten days after the date on the form which leaves little time to get my head around it all.

Any advice on the process would be greatly appreciated.

[Main man]

SD Capital One Help

Just looking for some advice in regards to a SD that has been received for a Capital One CC.

Brief history, this account has been in dispute for over two years and has been passed around various DCA's before being sold to Lowell late last year. Lowell have continued chasing despite only being able to supply the 'short application' that has none of the pescribed terms.

The SD was served nearly ten days after the date on the form which leaves little time to get my head around it all.

Any advice on the process would be greatly appreciated.

[Curlyben]

Re: SD Capital One Help

Well Lowell's in the guise of RED debt have screwed the pooch here.
You MUST get this set aside on the grounds of the non-compliance of the agreement.
Knowing the short application form well it doesn't contain ANY of the prescribed terms and as such is wholly unenforceable under CCA s127(3)

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: Agreement Enforceability - The Consumer Forums

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).

Also it is unlikely that the SD was correctly served.
I'm willing to bet it was sent by second class mail and doesn't have a named person to contact. So this is simply an abuse of process and shouldn't be used in this manner. Under Insolvency laws the SD must be either personally served or via registered mail, ie recorded.

Also don't forget to include your costs at the normal Litigant in Person rate of £9.25 per hour as well as mileage etc.

DON'T ignore this as they could well move for FULL bankruptcy proceedings against you.

Just out of interest what is the value of the debt ??
------------------------------- merged -------------------------------
More information can be found here: http://www.debtadvicebureau.org.uk/b...ry_demand.html
AND
here: Legal Issues Explained - Statutory Demand

[Main man]

Re: SD Capital One Help

Many thanks for the reply!

This was Hamptons Legal and was served after a knock at the door the other day, which came as a bit of a shock!! I intend to sort and fill the forms tomorrow so will post up when i get them done.

The amount is over the small claims but the charges that have been added would not bring it below the £5K mark, there are also issues I feel over the validity of the assignment.

So hopefully a good case in getting it set aside.

MM

[Curlyben]

Re: SD Capital One Help

I must admit to being somewhat surprised that they actually proper service.
No matter the non-compliance of the "agreement" is more than enough.
As for assignment this is covered under law of Property 1925
s136 and s196

(1)Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—
(a)the legal right to such debt or thing in action;
(b)all legal and other remedies for the same; and
(c)the power to give a good discharge for the same without the concurrence of the assignor:
Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice—
(a)that the assignment is disputed by the assignor or any person claiming under him; or
(b)of any other opposing or conflicting claims to such debt or thing in action;he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the Trustee Act, 1925.

AND

(4)Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

So, in a nut shell, what this means is that you should of been told of the assignment by registered mail (provable) and that Lowell's must be the absolute owner of the debt, rights and duties.


There's more about assignment here: Debt purchasing and assignment - Legal Beagles


BTW the lower limit for SD's is £750, but the fact there are charges is simply another TP for your set aside as the value is incorrect..

[Main man]

Re: SD Capital One Help

Thanks CB

A letter stating my intention to apply for a set aside along with a 'signed for' request for disclosure of all Data under the DPA was sent this week however I doubt that I will receive any quick form of reply.

Now does the 18 day time frame go from the date of actual sevice or from the date shown on the SD?? if the latter I will have to get my forms in on Wednesday next week as the courts are closed on Tuesday as well!!

[Curlyben]

Re: SD Capital One Help

Service is assumed within 5 days of the date on the SD.

What is the difference you have here ?

[Main man]

Re: SD Capital One Help

SD was dated the 8th and served on the 16th. I rung the court on Friday however the staff member I spoke to was not all together clear on how it works.

I will aim to get it in as soon as, but if there is some leeway I will take it!!

[Curlyben]

Re: SD Capital One Help

To be honest I would get it in for Tuesday.
Better to be safe than sorry..

[Main man]

Re: SD Capital One Help

I will re post

[Main man]

Re: SD Capital One Help

Was going to post up but to many Font markers to make it worth reading!!but all printed off, just the minor details to fill in on the forms. I will take them to the court tomorrow when they re-open again after the Bank Holiday .

No word from Leeds as of yet, left them my contact details as well !!

Do your detailed costs go in when the case is heard? I am seeking an estimate from the legal profession for comparison of costs.

Thanks again for the help!

[Curlyben]

Re: SD Capital One Help

No worries can understand that.
I doubt if our frinds from Leeds will either acknowledge you or even turn up.

As for costs, well you can't compare with a fee charging solicitor as their minimum is £110 an hour.
As A Litigant in Person (LiP) we are limited to £9.25 per hour, but you can also include mileage @ 40p.
Remember the bigger the bundle the more you can ask for

[Curlyben]

Re: SD Capital One Help

So time marches on.
Are you all prepared for this ??

Need to make sure your bundles are all together and ready for your appearance.

Anything from Leeds ??

[Main man]

Re: SD Capital One Help

Hiya CB

Yes all just about done.... I think? just costs sheet to do and take in for Monday, heard nothing from leeds, no reply to SAR, nothing!

I will PM you later to check things over if that's OK?

Regards

MM

[Curlyben]

Re: SD Capital One Help

Always mate.
Only to glad to stitch my "friends" from leeds