maharg v capital one

[mahargrisch]

I sent cca to cap 1 27/07/2010 after being on an arrangement with them.This arrangement came to an end in June.All the time this arrangement was in place they included with my monthly payment a notice of arrears.
On the 30/07/2010 they sent DN
On 11/08/2010 cap 1 sent cca response
I sent sar which on 27/07/2010 which was returned requiring proof of id re-sent 18/07/2010.




Now I need some guidance on what to do next.

• s78 request complied with but I only have their word prescribed terms included/There is some doubt that the t&C as those at time of application are the correct ones.
• copy of signature/application form states clearly at bottom RETURN THIS FULL PAGE implying that there is no other page and no reference to ANY terms on reverse.
• Letter stating compliance with s78 states included on the reverse was an extract of the terms of your original agreement(including the prescribed terms) or the full terms of your agreement
• DN was sent between my cca request and their reply.

I do not believe that this application form contains prescribed terms.Similar application forms from about the same time that I have seen which have not been edited BY CAP 1 do not include them.Any advice on where to start.

[jet83]

Re: maharg v capital one

Hi mahargrisch, this looks like yet another poor attempt by crap one in trying to fool someone into believing them they have complied a cca request.

Having a dealt with this company myself last year i know what the type of rubbish they come up with.

First of all you have to ask yourself why would crap one go to all the trouble of making a reconstituted copy when you simply asked for a true copy of the original in your cca request start with!!! Its most likely there isn't one as crap one have a very poor record of even having an enforceable agreement to start with let alone keeping them from this period.

I found this letter which you could send to them if you ammend to suite.

Dear Sir/Madam
Thank you for your letter dated xx/xx/xxxx of which the contents have been noted

I am fully aware of the recent case Rbs V Mcguffick however to pre empt any further attempt at confussion on your part I would point out that this was reffered to an agreement which was compliant but temporarily unavailable, therefore does not apply in my case. (edit)

Clearly you have chosen to abide the the Consumer Credit Act as minimally as is lawful, by providing a reconstituted agreement. While this may satisfy a CCA request, it is not enforceable in a court of law.

I now ask you to supply me with a signed statement as to whether you actually hold a copy of the original signed agreement . If you do not hold an agreement, then I require you confirm this,

Certainly I can think of no valid reason why you should choose to provide a reconstituted version rather than simply photocopy the original-if it exists.

It is in both our interests to resolve this matter between us by being open and thus hopefully avoid abuse of the court system.

I would remind you that the OFT state that creditors should not imply or state that an enforceable agreement exists if that is not the case.

Should you intent to use threat of court action, it will be vigorously defended and you will be required to produce an original, signed, compliant agreement to support your claim.

I am merely attempting to clarify the situation before this becomes necessary .

I look forward to receiving your response within 14 days.

Yours faithfully

Print name, don't sign

Regarding the DN as I still believe to be the case, the creditor is meant to specify a date to remedy by, not just say 28 days from the date of the letter, this is classed a faulty DN notice. Should they come up with an enforceable agreement which is unlikely but not impossible, all they would be able to claim are the arrears and not the whole balance It would be a good idea not to inform them of this any correspondence you send them

If somebody with more knowledge than myself could confirm this, it would be much appreciated:tinysmile_grin_t:

jet

[pandora]

Re: maharg v capital one

With regards to the DN ....

The Creditor has to give you at least 14 days from the date of service (i.e receipt) to allow for remedy of the breach of the DN.

The DN has to specify what you have breached, how this may be remedied, and what the arrears are for payment (which must be genuine arrears, and not include penalty charges etc).

So check that the arrears stated in the DN are absolutely correct and to the penny.

With regards to the "28 day" issue - IMHO - if this is the ONLY fault, and you have a correctly executed CCA - I would doubt very much a Judge would rule in your favour on this point.

The fact that they have given you more than the minimum 14 days required, I think would swing the Judge to deem that you were not disadvantaged by the Creditor failing to notify a specific calender date - as they had given you more than the minimum requirement, and sufficient time to remedy in the 28 day period.

This is only my opinion and feeling - but I wouldn't want to take a chance on this being my only defence in the court room .. hopefully we'll defend this on a defective CCA and other issues.

Sure others will be along to add comment ...

P

[jet83]

Re: maharg v capital one

Hi pandora, yes I think i'd have to agree with you there, although putting pay within 28 days of this letter instead of the 14 days from receipt is technically a breach of what is required, this alone without any other discrepancies with the DN would probably get ruled in favour of the creditor.

Cheers, jet

[MIKE770]

Re: maharg v capital one

have been informed a date should be given to remedy not in so many days time//???

Have a look at attachment & see what it informs us? might help.

[pandora]

Re: maharg v capital one

Hi Mike,

I agree that the regulations clearly state that a specific date must be given .... however I've heard of cases even where its been less than 14 days given, and its a clear disadvantage to the Debtor, the Judge has ruled in the the creditors favour.

If a specification of a date was my only court room defence ... I would be slightly worried as to the outcome with a DJ ... who lets face it don't understand the CCA74 & 06 in most cases and could easily go either way - based on the fact that they have given more than the 14 day minimum period ...

Do you know of a case where a DJ has gone the debtors way and ruled on the specific date issue? Would be a good idea just to post up the details so that the OP can include this in their defence .... if it gets to court .... the judge deems a satisfactory CCA and throws out the specified date arguement for the DN ...

Would be really beneficial to many if you could post up, with thanks in advance on behalf of the OP and others who it will benefit ....

P

[mahargrisch]

Re: maharg v capital one

Received second letter from fredricksons(first ignored)demanding payment in full(LBA).7 days.
Do I just wait for them to start CC proceedings or send them account in dispute letter.

[Amethyst]

Re: maharg v capital one

I'd send them the account in dispute letter, no point waiting to defend a court claim if a letter can stave them off now.

[mahargrisch]

Re: maharg v capital one

The DN has to specify what you have breached, how this may be remedied, and what the arrears are for payment (which must be genuine arrears, and not include penalty charges etc).

In 2008 I entered into a payment plan which according to capone was less than the minimum payment required.
Each month they sent a NoA which was the minimum payment less the amount paid under the plan.
This amount increased and finally the DN stated that the overdue amount was £3xxx.00.


If i use the charges spreadsheet the amount of charges comes to £500.00 with STAT INT of £170.00(£670.00) or with CI £1100.00(1600.00).

How do I determine if these are included in the amount shown on the DN.

m