Piesky V Cap One

[Curlyben]

Re: Piesky V Cap One

Here's some notes that may well prove useful..

REsponse to 1983 sections:

As you are no doubt aware the The Consumer Credit (Cancellation Notices and copies of Documents) regulations 1983 (SI 1983/1557) is only applicable in conjunction with The Consumer Credit (Prescribed Periods for Giving Information) Regulations) 1983 (SI 1983/1569) and are only applicable to the Consumer Credit Act 1974 sections 58,62,63,63 and 64. My request is a statutory request made under the Consumer Credit Act 1974 section 77/78 and therefore the copy of the credit agreement requested must be a true copy of the fully executed agreement.



"I understand that under section 3 (b) of SI 1983 /1557 you may omit the signature box from the copy , I would point out that not having the original document it would to be impossible to verify the validity of such a document as an exact copy.
I therefore would suggest that a true copy including my signature be sent. If I am unable to verify the authenticity of the document the terms of 1974 section 77 act have not been met and the timescale for production of the documentation would still apply"




Section 77/78

In order for a lender to fulfill a Section 77 or 78 request they only have to send a copy of the agreement that meets with the requirements of the Consumer Credit(Cancellation Notices and Copies of Documents) Regulations 1983 [CNCD]; The document does not have to contain any signature, nor even any signature box, nor does it have to contain any information specific to the borrower. So essentially a copy of the T&C's will fulfill a S77/78 request and in that sense your lender HAS complied with S77/78.

BUT

In order for a loan agreement to be enforceable it has to comply with Section 61 of the Consumer Credit Act 1974; this states (amongst other things) that in order to be properly executed the agreement must be signed, in the proper manner by the lender and the borrower and must embody all of the terms and conditions other than implied terms.

So in order for a lender to be able to get a court to enforce a laon agreement they MUST produse the fully executed document, or an exact copy of it to the Judge. If they can produce it for a judge then there's no reason why they couldn't have produced it for you. If they don't produce it to you but then rely on producing it court the judge will not be pleased at the waste of court time.

So I would write back and ask for a copy of the agreement that conforms with Section 61 of the CCA and say that until they do produce it you do not acknowledge the existence of any agreement between you and them. If they then produce it - OK but if not then they can't get a court to enforce it either.

[piesky]

Re: Piesky V Cap One

In response to advice from Curlyben, I am compiling a new letter. When posted,c ould you please check this before I send. Thanks very much.

Piesky.

[frisp]

Re: Piesky V Cap One

I've had long term dealings with the 'fragrant' Ms Renshaw and have come to the conclusion that she is not a real person but one who is the representative face of Cap 1.

Over the years some of the correspondence I've had with 'her' has contained inconsistencies and in one recent incident it appeared that she has not even updated her own file and responded as if this was the first time we had corresponded.

Another indicator might be that the reference nubmbers on her letters rarely follow a single thread leading me to believe that the 1st 3 letters refer to the person writing the letter.

Just a sneaking suspicion borne of a long standing complaint to the woman.

Further it's pointless sending her letters containing legal references I did this and got no where, she just responds with templated letters stating they are right and you are wrong.

We are currently stalemented neither on wishing to risk court action based on a moody agreement.

Hope the above helps

[piesky]

Re: Piesky V Cap One

Here is the letter compiled using info from Curlyben. Would appreciate a proof read on this to confirm it is relevant and correct.

Thanks

Piesky

Account In Serious Dispute

Formal Complaint

Dear Ms Renshaw

With regard to your replies to my request under section 77-79 of the Consumer Credit Act 1974, I would remind you that you have replied by sending a blank copy of a current agreement and your company’s current Terms and conditions. I must inform you that this is not sufficient to comply with my original CCA request and that your company remains in default under the act.

To clarify,the alleged agreement you have sent, and stated as being fully compliant, isn't properly executed in that signatures and personal details are missing and, although under certain conditions this can be rectified by a court ruling - assuming the terms are all present, the document remains unenforceable.

As you must be aware, an agreement that doesn't contain my signature AND personal details is completely unenforceable. (The fact is, the documents sent could relate to anyone)

You continue to quote The Consumer Credit (Cancellation Notices and copies of Documents) regulations 1983 SI 1983/1557 concerning omitted information. The Consumer Credit (Cancellation Notices and copies of Documents) regulations 1983 (SI 1983/1557) is only applicable in conjunction with The Consumer Credit (Prescribed Periods for Giving Information) Regulations) 1983 (SI 1983/1569) and both are only applicable to the Consumer Credit Act 1974 sections 58,62,63, and 64. My CCA request dated 31 December 2008 was a statutory request made under the Consumer Credit Act 1974 section 77-79 and although you have complied with a section 77/78 request, the copy of the credit agreement requested must be a true copy of the fully executed agreement in order to be enforceable.

I understand that under section 3 (b) of SI 1983 /1557 you may omit the signature box from the copy. I would point out however that not having the original document proves impossible to verify the validity of such a document as an exact copy.

In order for an agreement to be enforceable it must comply with section 61 of the Consumer Credit Act 1974; this states (amongst other things) that in order to be properly executed the agreement must be signed, in the proper manner by the lender and the borrower and must embody all of the terms and conditions other than implied terms.

I therefore reiterate that this request remains in default and will remain so until such time that you produce a true copy of the signed executed agreement that conforms with section 61 of the Consumer Credit Act 1974 and that you allege actually exists. You would be required to produce this in front of a judge in court in order to have it enforced and I therefore see no reason, if you have it, why you have not produced it for me.

I would again respectfully remind you that whilst this request remains in default and my lawful request remains outstanding, you are committing a criminal offence. I would also remind you that whilst this situation continues, you may not share my personal information with any third parties including, but not limited to Debt Collection Agencies and Credit Reference Agencies. Permission to hold and share my personal data would have been given in a signed, executed credit agreement – which you have not produced.

I do not appreciate the incessant telephone calls and letters from Debitas informing me that you have complied with my request when, in fact, this is not the case. I am therefore recording all calls received from both Debitas and Capital One Bank for reference.

I now await your positive response to this letter and confirmation as to whether or not you do have a TRUE COPY of the original signed executed agreement as requested in my original correspondence of 31 December 2008.

Yours sincerely
------------------------------- merged -------------------------------
Thanks for the info Frisp. I am getting somewhat annoyed at their standard letters and will wait and see what Cap One's next move will be.

[Curlyben]

Re: Piesky V Cap One

MUCH better there Pie.

Do you see what I was driving at now ?
With this you have asked the correct questions

[frisp]

Re: Piesky V Cap One

Good letter m8, It'll get the job done

Not wishing to dampen your enthusiasm too much, she really doesn't care, I doubt they'll react until you serve court documents also she has already told you that they consider there is no dispute and she'll continue to take this stance, you'd be better writing to the FOS as the more complaints with a similar nature they might take some action.

I strongly recommend that you ask Ms Renshaw for her final response and then fill in the complaints form and send it in to my case officer - jonathan.trollope@financial-ombudsman.org.uk

If your agreement has no signature you'd be better off trying the route that PT has suggested OTR why you shouldnt use section 77/78 CCA 1974 if you want the signed agreement - The Consumer Forums. Here are the words to use

As this matter may end up in the courts, I respectfully request that you provide me, within 21 days, a copy of the Argos credit agreement, incl. of Terms and Conditions applicable at time of signature, which bears my signature.
I have reason to believe that there may be discrepancies within the agreement which may leave it improperly executed. As you are aware, if the agreement is improperly executed I would be entitled to ask a court to consider the agreement and make a declaration of the rights of parties to the agreement.
I must stress this request is NOT made under section 78 Consumer Credit Act 1974 but is made pursuant to the Civil Procedure Rules (Pre action protocols and Part 31.16) and therefore an unsigned copy will not suffice, only a copy of the original contract in its unaltered form inclusive of applicable (at time of signature) terms and conditions will suffice.
Please confirm if you hold a copy of my signed agreement and that you will provide me with a copy of this contract.
I do not view this as an unreasonable request given that by supplying the document, I have asked for, will allow me to assess if my case has merit and help to resolve matters possibly without the need to involve the court and will undoubtedly save costs on both sides.

I've had mixed success with this tactic

Just some advice borne of a long association with this lot.

Good Luck

[piesky]

Re: Piesky V Cap One

Hi Frisp. Thanks for your advice, I'll revert to you as things progress.

Piesky

[piesky]

Re: Piesky V Cap One

Ok. Have now received a demand letter from DCA Frederickson International telling me to contact them and pay in full....it goes on.

[Curlyben]

Re: Piesky V Cap One

File under I for now and we might make a response after the next one.

[piesky]

Re: Piesky V Cap One

Thanks CB, will do.

[Curlyben]

Re: Piesky V Cap One

You'll most likely have a letter from our old "friend" Mr carter as well.
Don't panic as it a normal nastygram

[frisp]

Re: Piesky V Cap One

Agreed, not out of the top drawer that lot, looks like the premier DCAs are wise to Cap 1

[Curlyben]

Re: Piesky V Cap One

Well, depends on who you class as premier really.
Lowell's seem to like them, after all they have issued enough sd's

[frisp]

Re: Piesky V Cap One

Yep your right they're all 'feckers'

[piesky]

Re: Piesky V Cap One

Hi all,

Frederickson International have now sent me a Letter Before Action. It states:

This Debt Must Be Paid In Full To These Offices Within The Next seven Days Otherwise we Will Take Immediate Action.

Should It be necessary to issue proceedings in the county court, further costs will be added to the outstanding balance.

Balance to pay now - £7652.83
Interest - £612.23
Court fees - £190.00
Solicitors Costs - £100.00
New Balance if Proceedings Issued - £8555.06

If a judgement remains unsatisfied, a bailiff may be instructed to recover assets to discharge the outstanding debt

Any further advice please?

Thanks

Piesky