Capital One CCA

[lee1972]

Re: Capital One CCA

Thanks peter, I think you misunderstood.
CPUTR , if they mislead me for example by saying that they hold the original when they do not, that is a criminal offence. I am fully aware that the criminal sanctions of S77-79 have been repealed.
I did not say I had not received a DN, what i said was I did not have one, and that a DN had to be very specific and the inclusion of a statement is not one of the specific requirements. See Santander v Mayhew (I believe the legislation used there was post 2007)
I know S127(3) was recinded and hence most post 2007 agreements are enforceable however I am not convinced by your assertion that any subsequent legislation would have no effect.
Again in carey , carey was the plaintiff so the burden of proof is somewhat different.

Seems that should the need arise I will need some professional advice although as my credit is stuffed not got a lot to lose

[Guest]

Re: Capital One CCA

CPUTRs are not individually actionable, you would have to get an enforcement authority to take them to court on your behalf, and they wouldn't.

Cary was about section 78 yours will be about 127.

Not sure how you would use new legislation to enact sections that had been deleted from the act earlier.

Peter

[lee1972]

Re: Capital One CCA

CPUTRs are not individually actionable, you would have to get an enforcement authority to take them to court on your behalf, and they wouldn't.

Quite right , but the OFT can and as the other day it was said that the new authority will act much quicker , will the banks want to cross them?

Cary was about section 78 yours will be about 127

.
Carey et al covered a whole range of things but Judge Waksman did say that the original would be needed for enforcement.
Carey et al were claimants and as I said before that moves the onus of proof as I would be a defendant

Not sure how you would use new legislation to enact sections that had been deleted from the act earlier.

Peter

Actually my original question was about what is required under a cca request, which is an agreement and a statement and other bits. The statement has to be set out in a certain way and signed. What I was asking was does the lack of a statement in the set way mean that the cca request had not been honoured and if so wouldn't that make the whole pre 2007 agreement UE

Your brought up the DN saying a statement would have been included to which i responded a) not actually required and b) doesn't move the obligation to provide one with a cca request

[Guest]

Re: Capital One CCA

Quite right , but the OFT can and as the other day it was said that the new authority will act much quicker , will the banks want to cross them?

So you are going to get the OFT interested in your case, i see, will you have time before your hearing, how will this appear on your defense.
.
Carey et al covered a whole range of things but Judge Waksman did say that the original would be needed for enforcement.

No he did not entirely the opposite
Carey et al were claimants and as I said before that moves the onus of proof as I would be a defendant

Balance of probabilities


Actually my original question was about what is required under a cca request, which is an agreement and a statement and other bits. The statement has to be set out in a certain way and signed. What I was asking was does the lack of a statement in the set way mean that the cca request had not been honoured and if so wouldn't that make the whole pre 2007 agreement UE

No just enforceable only by order of the court section 65

Your brought up the DN saying a statement would have been included to which i responded a) not actually required and b) doesn't move the obligation to provide one with a cca request

How would they supply one they have already sent it to you, there is no requirement to keep a copy YThe dn would say you pay so much or the full ballance of XXXX WILL BE DUE, THIS IS A STATEMENT OF THE BALANCE DUE ON THE ACCOUNT.`

Anyway it is not needed as it will be on the p o c.

Peter

[Guest]

Re: Capital One CCA

Section 199 Carey

Here it needs to be remembered that under sl27 (3), the Court must not make an enforcement order
"unless a document... containing all the Prescribed Terms... was signed by the debtor" [my emphasis]. The
failure to provide a s78 copy (which need not contain the signature in any event) does not mean that an
agreement was not signed at the time.

peter

[Guest]

Re: Capital One CCA

Like i say your best chance is that they do not have a signed document, you must make a positive declaration that no agreement was signed otherwise the balance of probability may favor the other side.
Good Luck

[lee1972]

Re: Capital One CCA

We will never agree so lets leave it there.

[Guest]

Re: Capital One CCA

Don't know what else to tell you, unfortunately in these instances it is not a matter of disagreement, you say you want to learn, what i have told you is fact.

peter

[lee1972]

Re: Capital One CCA

There is probably not much else you can tell me,, however I would be grateful if you were not quite so dismissive of legal procedure. I did not say I would get the OFT involved in the case , I suspect that you were trying to take a cheap shot. What I said was that if they lied, i'e said they had one when they didn't that would hardly endear them to the judge. I would of course however report them to the OFT at the appropriate time. If they did lie it would be unlikely I would know until the actual hearing so I could hardly get the OFT involved in time now could I.

You talk about balance of probabilities and indeed that is the case, however if I was the defendant it would be up to the creditor to show (on the balance of probabilities) that my statements were untrue. So if as I am saying i have no memory of signing the agreement then the absence of the statement would mean that unless an original signed copy existed (to prove my error) s127(3) would make it UE. Hope what i am saying makes sense to you.
I suppose I did not make my stance fully clear at the outset and for that I apologise

[Guest]

Re: Capital One CCA

Sorry i thought you sere trying to compile a defense and time was of the essence.
I was pointing out factual errors in your arguments, just trying to help.

Peter

[Lord_Alcohol]

Re: Capital One CCA

Just my tuppence worth...I see nothing wrong with asking your local Trading Standards Service to enforce CPUTR on CapOne if you believe that offences have been committed (not sure if they are criminal), as local authorities can enforce CPUTR in the same way as the OFT. You do not need to involve the OFT in this, as has been suggested. If your TSS is involved, it might be to your advantage to mention it in proceedings.

As for Carey, if your agreement has been varied then, yes, CapOne need to produce the original signed agreement. I reproduce the relevant section here from the judgement;

234(4) If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms.

So the upshot is that you would need to be 100% sure that CapOne could not produce the original in court, as Peter has said. I too think that S78 is not a useful avenue to follow.

As for the DN, is it possible to SAR CapOne to get the details and "reverse engineer" the notice to obtain the likely information? If there are flaws in that it might help you reach a settlement. For example, if the DN is "ineffective" then CapOne may have breached its contract with you by not sending the monthly statements needed for you to make contractual payments, and there is unlikely to be a provision within your contract that entitles CapOne to suddently claim all "arrears" for the intervening period in one go (ie, holding you responsible for their mistakes). Also, the DN (reconstructed or not) might show if the default was caused by charges - if it was, then it might be possible to negotiate on that basis.

HTH
LA

[lee1972]

Re: Capital One CCA

thank you

[Guest]

Re: Capital One CCA

Hi

I think if you are talking about constructing a defense CPUTRs are not going to help, as i said they have to be enforced via an authority, and generally they will not act on an individual case, only where a practice is identified to breach the requirements and enforce via the enterprise act.

I think you probably could say this is in breach of the CPUTR on your defense, i am not sure what the judge would make of it.

Also i think it unlikely that the creditor is going to manufacture a none compliant default notice, you obviously have more faith in their honesty than i do.

The OP could always assert that none was sent at all off course.

Yes the 78 request defenses do not work in all but a few instances.

Peter