Capitial One - CCA Request

[Curlyben]

Re: Capitial One - CCA Request

Interesting comments from TS there.
While Cap1 have technically complied, or in this case attempted to, with s78(1), they cannot enforce based on this "agreement". The even attempt enforcement a copy of the actual agreement would be required. As the TS bloke correctly said No CCA = No enforceable debt, as per CCA s127(3). The pre April 2007 part refers to the repeal of s127(3) in the 2006 Act.

As we know they use SI 1983/1557 and the removal of personal details to hide behind the fact they don't have a compliant agreement and to "fool" people into making payments when there is no lawful reason to do so.

[fuzzybrain]

Re: Capitial One - CCA Request

I think (and my brain is really muddled!) That we ended up stating that Cap 1 could send me a blank copy of a 2004 agreement with T&C's from 2004, plus current T&C and this would meet the CCA requirement.

Once the CCA requirement has been met we then move onto enforceability issue.

At present as they haven't/wopn't/can't supply a 2004 agreement (blank or otherwise) the CCA request has not been met - depsite the fact that they say it has.

My guess is that the 2004 agreement is non compliant and therefore are refusing to send it out as they know the unenforceable elemt is brought into play.

Passing the debt on is also being looked at by TS. TS stated that the letters i have sent aren't very clear about what my disputewas??? and that he hadn't managed to grasp what i was asking for, but after speaking to me he realised what the situation was (he thought that the blank agreement they sent was a copy of the orginial agreement). I did state to TS that i think they have cherry picked the bits that suits them and then write and state they have complied.

Another interesting development was that TS have stated that they are prepared to run with this and support prosection if in the public's best interest. He did say that if enough people complained to their TS then this could become a national issue and therefore make it in the public interest to go forward with any charges/investigations. he mentioned things like home countries and liaising between kent and Nottingham etc, but my head was buzzign at this point and i couldn't take it all in - especially as he wasn't sure where the main authority would be - he needed clarification on some legal points

So (and especially if you are in Kent!!) please please please complain to your local Trading standings and make it clear what the issue is (he sent me the above info in colour for people to attach to their complaints) so the issue is very clear and can be co-ordinated

[fuzzybrain]

Re: Capitial One - CCA Request

Another response from TS - but i haven't got a clue what it means - any ideas???

I have looked into this situation, and the issue you have concerning the copy status of the document has been decriminalized. This means that even if we can show they have issued an incorrect document I would not be able to investigate as no offence now exists.

I have asked for some clarification from the Home Authority, and I will let you know as soon as I receive a response.

[fuzzybrain]

Re: Capitial One - CCA Request

And yet another call from debtass (seems to be a regular thing on a saturday for them!!). I have once last chance to clear the balance or thwy will transfer the debt to an external DCA for further action.

I had to confess i was a little short with them (I wasn't abusive or rude tho) and said i was fed up with all this mucking about and they should either put up, shut up or sue me as they are not gettign a penny from me till i get a copy of my agreement. I was having a bad morning and they just happened to call at the wrong time!!

They said they will transfer the debt on the 5th August to an external DCA with a recommendation for court action. My response - oh goody - lets see if a judge can get an agreement out of you, coz i can't!! he said that was i really confident a judge would agree with me and did i want to risk court action. I responsded with - do you think i would go to court if i wasn't confident a judge would rule for me. I aslo said that another complaint to FOS would be sent if they transferred the alledged debt as this contravenes the OFT debt collection guidelines and that trading standards are investigationg the matter and i wanted the callers name to add to the complaint for contuning to demand payemnt whilst the debt is in dispute. I asked if he would like TS number and the person who is dealing with the case to clarify the sitaution? I swear i heard a squeak from him at that point! (it really has been a bad morning!!)

The call was terminated by them after that - shame!!!

I guess when the new DCA contacts me i send them the dispute letter and await the barrel load of phone calls that i'm bound to get???

[Curlyben]

Re: Capitial One - CCA Request

Lol, sounds like fun.
Well without the compliant CCA AND assignment they are totally burgered.
Now if they had all this themselves then they would be taking action, now wouldn't they

[archer_66]

Re: Capitial One - CCA Request

its true ,if they could provide the agreement theyd just take you to court not transfer it to some one alse. when the new ones ring or write just tell them theres no CCA and the debt should not be collected upon or passed to a third party , then hopefully theyll pass it back to originator.... god these companies are a nightmare. they get away with it as well....

[frisp]

Re: Capitial One - CCA Request

I had a long conversation with Trading Standards regardign my complaint about Cap 1 and Debtass. I think to begin with he had missed the point and was staign that the company had sent me the CCA under the terms of true copy. It was only when i explained that the copy they sent me is what i would sign now, not what i signed in 2004 and the reason i knew this because the current agreeent list fees at £12 and in 2004 they were higher that this, he realised that perhaps the true copy requirement wasn't fullfilled.

He clarifed the situation with an email -i'm still not sure his explaination is completely correct tho......

From the guidance we discussed yesterday there are two basic points that I would like to bring to your attention. The first relates to the term 'true copy' .
The copy of the executed agreement need not be an exact copy but it must be a ‘true copy’ and not some reconstruction of what the original might have been and it must contain the same terms as the original. Where the terms have been varied as provided for within the agreement, the copy of the original agreement must be accompanied by a document setting out the current terms, as varied. Certain details may be omitted from the original agreement e.g. the signature but the debtor must be in no doubt as to the true nature of his obligations under the loan

It may be that the copy you have been provided with can be a true copy, the changes in the charges that we discussed may still have the same terms. I do understand that the agreement they have sent you is today's agreement and not one of when you signed in 2004. The correct process as I understand it should be that a document the same as you signed should be sent to you, and any amendments that have been made (such as changes in charges) should be sent in a separate document. I will clarify this situation and let you know what the outcome is.

The second point relates to the date of the agreement and if the agreement is then enforceable.

The consequence of the debtor not having signed a credit agreement with the creditor is that the agreement is unenforceable except where the court orders that enforcement may take place. Where the agreement was made before 6th April 2007 the court is not able to make such an order unless the agreement was signed by the debtor.

Your agreement was signed in 2004, and therefore before April 2007, and at first reading it appears that if the company can not produce a signed copy of the agreement then they can not get a court to enforce against the agreement. As the company have supplied a signature box, I think this would all hinge on the production of a true copy, so we could be back to your original point. I will seek clarification on these two points and see if is any case law that upholds this guidance. As we discussed it would be down to the courts to decide if this is relevant as they would look to the legislation and any precedent of case law.

I will e-mail you as soon as I have a clearer picture of the status of the documents you have been sent, and if the date of the agreement means that they have to shown a signed copy. I will also out line what this service can do, and if it is not us who can proceed then who the correct authority is.

None of the above from TS is relevant as they are unlikely to pursue an offense under the CCA as it is 'not in the interest of the public purse to do so'

HAve a look at my ongoing bun fight with I have taken to the Local Ombudsman

Trading Standards - what use are they. - Legal Beagles
------------------------------- merged -------------------------------

Another response from TS - but i haven't got a clue what it means - any ideas???

I have looked into this situation, and the issue you have concerning the copy status of the document has been decriminalized. This means that even if we can show they have issued an incorrect document I would not be able to investigate as no offence now exists.

I have asked for some clarification from the Home Authority, and I will let you know as soon as I receive a response.

This is their attempt at getting out of investigating the issue, remind hinm your agreement is pre-2006 legislation and therefore the criminal act happened pre legislature change.
------------------------------- merged -------------------------------

its true ,if they could provide the agreement theyd just take you to court not transfer it to some one alse. when the new ones ring or write just tell them theres no CCA and the debt should not be collected upon or passed to a third party , then hopefully theyll pass it back to originator.... god these companies are a nightmare. they get away with it as well....

I've found that sooner or later regardless of how many times this gets passed around it gets to the bottom of the DCA evolutionary tree and when they pass it back thats it.

Its just a question of sending out the prove it letters, I use 2nd class stamps, sitting back and waiting for them to Foxtrot Oscar

[fuzzybrain]

Re: Capitial One - CCA Request

Oh well, looks like i'm for some fun!!

I'll just keep sending the dispue letters and wait for one of them to be stupid enough to go to court. Cap 1 have defaulted the account (and one more defualt doesn't ake any difference to my screwed up credit record!!) so its a case of waiting 6 years for it to drop off.

Perhaps i should have a bet on how many DCA's contact me about this in that time!!!

[fuzzybrain]

Re: Capitial One - CCA Request

And so it begins!!

Here's capquest opening letter to me - Do i send them the account in dispute letter back???

[Sapphire]

Re: Capitial One - CCA Request

Yep hun send them the letter and remember to file it all safetly away.

[fuzzybrain]

Re: Capitial One - CCA Request

Well I sent them the letter and they respnded with this!!

What Do i send them now??

[fuzzybrain]

Re: Capitial One - CCA Request

Have managed to post the letter up now, could anyone offer any advice please

[fuzzybrain]

Re: Capitial One - CCA Request

Help - anyone????

[Mochamoo]

Re: Capitial One - CCA Request

Just another scare letter, send them another letter saying the account is in dispute.


Is this the letter you sent them before??

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.

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

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.

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

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.

Yours faithfully

[fuzzybrain]

Re: Capitial One - CCA Request

No, i sent them this one.... was that the incorrect letter to send???

Thank you for your letter of 12/08/2009 the contents of which are noted.

As holders of a Consumer Credit Licence you are obliged to comply with the Office of Fair Trading Guidelines on Debt Collection. I would therefore be obliged if you would provide me with an explanation as to why you are attempting to collect on an alleged debt which was disputed with CAPITAL ONE prior to your first contact with me, and has yet to be resolved.
As per OFT guidelines Section 2.8k "not ceasing collection activity whilst investigating a reasonably queried or disputed debt."

Since this is considered an unfair practice and contrary to the OFT guidelines, you should consider this letter as a formal complaint, and provide me with a copy of your complaint resolution procedure.

I also require you to confirm that you will now comply with the OFT guidelines, and will not attempt any further collection activity whilst the dispute is unresolved.

Should you fail to provide me with the required undertaking within 7 days, I shall report your breach of the OFT guidelines to Trading Standards and the Financial Ombudsman Service.

Take notice that I will not discuss this matter on the telephone, and all further communication must be in writing. Any further telephone calls will be perceived as harassment, and dealt with accordingly.

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.