I'm not protecting the lenders identity its FCA Automotive services (now CA auto finance) - merely my own, and you never know who's looking at these posts.. Theres a mountain of correspondence and I wouldn't expect anyone else too wade through it. Some weeks after the result of the auction was known the lender sent me the usual final demands etc for the shortfall and I'm pretty sure in terms of their paperwork they are ok. I was furious at the time and responded accordingly - pretty much telling them to stuff it. The car was auctioned in a trade only auction specific to that manufacturer. The big issue was that they advertised it as covering 27,000 miles more than it had done... Which makes a big difference to the value of a nearly new car - esp that make and model. So the car was massively undersold. It was resold by the buyer within the trade a few days later at a big profit and retailed by another dealer within a few weeks again at a profit above that. Now, - they claim that they could do what they liked with the car, the sale was entirely at their discretion . They had no duty to mitigate loss, and essentially all the shortfall, costs etc were indemnified by me under the agreement.. (and that might technically be correct in law too). - There were other issues around the repossession and subsequent sale that weren't quite right too, and I was misled in their communications at that point. The clause I was hoping to rely on is in CONC - which is the sourcebook covering HP agreements I think. and its clause 7.15.10. which says .. “A lender must not initiate legal proceedings in relation to a regulated credit agreement where the lender is aware that the customer has submitted a valid complaint or what appears to the firm may be a valid complaint relating to the agreement in question that is being considered by the Financial Ombudsman service.” Now, They submitted the claim to the court on 10th October 21 They were aware of my dispute back in March the same year. In early September the possibility of an FOS investigation was mentioned And at the end of september their solicitors were informed that a complaint to the FOS had been made. By 09/10 the FOS had responded allocating the claim a reference number.. So the dates are tight .. but nonetheless. Following that the lender then decided that they were unaware of my original complaint. - Despite me having a "final position" confirmation email from their solicitors in late September. - Their reasoning that I had not followed their complaints procedure..And that in the FOS view needed to be done before they could move on. So I submitted a formal complaint, which they responded to within 28hrs, finding that they'd done nothing wrong. (obviously) - Though they had completely mis characterised my complaint and addressed the different less important issues that I had raised alongside the meat of my issue. The Court proceedings rumbled on - the claim not having been withdrawn alongside this. Following that the FOS informed me that it would be "inappropriate" to continue whilst legal action was "live". They were prepared to continue if a Stay could be agreed - and I attempted to agree this with the lenders solicitor - to no avail. I then corresponded with their lawyers pointing out that we were required to seek ADR and that I was happy for the FOS to continue their enquiry. A stay however would be required. I was using HMGOV justice dept guidelines for Pre-action protocol for debt claims - Where at 6.2 the FOS is specifically given as an appropriate solution. I suggested this. the response was that "mediation" was a formal and expensive process and not suitable and the lender would not agree to Stay for the FOS to continue. So we are at pretty much trial day soon.. Witness statements and evidence are exchanged and I've been working my skeleton argument, which has I think some merit.. The bones of it being that the Agreement and all the correspondence not that the lender is regulated by the FCA etc.. Which is in itself a form of guarantee of fair dealing with a complaints process by the FOS if things go wrong.. Research reveal however that a customer cannot use the basic rules under PRIN in the FCA handbook as a basis for a damages claim.. Though most of COBS and indeed CONC - which I think apply here are actionable. But that still leaves me a bit thin. So looking at the original agreement again - and as this is a Financial services dept of a major manufacturer is likely to be tight, fairly generic and fit for purpose. I am reminded of a clause in the agreement under the heading "IMPORTANT" and it says :- “If you are not a business debtor, you have the right to refer complaints to the Financial Ombudsman Service…..” Their conduct, has effectively made it impossible for me to exercise that right. Whilst there are aspects of their behaviour that are not actionable in a court of law, they would i'm certain have breached fundamental principles that the FOS could rule on. They effectively removed that right by issuing a claim having been notified of an FOS complaint. Knowing then that the FOS could not investigate whilst action was "live" they refused to agree a stay to facilitate it. They didn't regard the FOS as an appropriate mediator (despite MOJ recommendation) They knew that the FOS had no power to make them withdraw the court action. And - If they were now to agree to FOS investigation the the FOS would tell me "sorry mate, but your complaint has timed out..." So.. Is the prevention of a right of redress that was included in the original agreement likely to be fatal to their case ? Waddya think ? Screenshot 2023-10-11 at 18.41.21.pdf

I realise its a bit late in the day.. and a variety of reasons why I'm late to the party - mental health amongst them. - However we are where we are and I'm too far down the road to start from scratch with a defence here. I've not been on this site for many years and the last time I had some very helpful advice from some lawyerly types, was hoping for more of the same. This isn't the only debt I've had to deal with recently, but by far the biggest.. My experience is that various lenders play fast and loose with the FCA rules - and game the system to avoid FOS scrutiny.. Which is precisely what the lender has done in this case. The question really remains - if by their behaviour they have prevented the FOS investigating - and the right of the customer to complain to the FOS is a term of the agreement. Then have they damaged their chances of enforcing the debt through the courts ?

I'm currently facing court action in relation to Car finance - an HP agreement. The car was repossessed and sold at undervalue at auction as the mileage was reported as twice that as the car had covered. This resulted in a shortfall which the lender is now pursuing me for. There were a number of issues relating to the lenders handling of my account which I believe broke FCA rules, in addition to the mishandling of the sale. They are making a debt claim and contend that they are under no duty to mitigate their loss. Had they been prepared to write off the debt then I'd have been happy to leave it there, and I made it clear that I disputed the amount they claimed - though didn't lodge a "formal complaint" I did submit a complaint to the FOS however - and informed the lender. Nevertheless they started court action. (against FCA rules I believe - where a complaint has been submitted.) Because there was "live" court proceedings the FOS told me they could not investigate - I think as it was then competing jurisdiction.. However a Stay of proceedings would have allowed that process to proceed. The Lender refused to stay. - As part of the Pre action Protocol (which recommends the FOS is an appropriate means of ADR) I again asked them to stay proceedings - they refused. I'm preparing my defence, and from what I can gather I cannot use their breach of any FCA rules. BUT... Looking at the original agreement it states under a heading "IMPORTANT" ... “If you are not a business debtor, you have the right to refer complaints to the Financial Ombudsman Service…..” Now, It seems to me that my right to have the FOS look into this is protected in the agreement... And as the lenders behaviour has prohibited the FOS proceeding with any complaint investigation then that right has been removed.. I think I can reasonably demonstrate that the lender has deliberately sought to avoid FOS scrutiny here - and failed to use the FOS as ADR... and of course now that time has lapsed the original complaint has "timed out" on what the FOS can look into... So there is really no way back to that - even if the court directed that there should be. Question....? Is the lenders behaviour in avoiding that "right" to the FOS fatal to their case ?

can't imagine that any of them will allow a visit for a personal inspection...and it seems to me that they only like going to court when they think their claim will not be defended. If they really did have the original docs then i can't see why they wouldn't just say so, and produce a decent copy.. the fact that they don't do that suggests to me that they don't have their house in order and will have to rely on threats to succeed. Just for a second... put yourself in their shoes... what would you do... The only other explanation is that the dept chasing the dept don't actully know whether or not they do still hold the paperwork and are trying to bluff it out until another dept produces it ...or not.. we'll see... might be helpful to know from other caggers whether they can succeeed in court with only a "copy" document.. FOTN

I'm still trying to dispute the cca response, though they are ignoring that and continue with the letters and 'phone calls. I was intending to write and ask them outright to confirm the following. 1. whether they still in fact held the original document, and if they did why it is not possible for them to send a legible and complete copy of it. 2. If they do not still hold the original document, how can they satisfy me that this is a true copy of it, bearing in mind that there seems to be nothing to show that the two pages are related to each other let alone the original.. havn't done it yet, but it's on my mind.. so far as i can see then their reply will be binding on them.. I suspect though that they'll refuse to co-operate and insist that they've sent all that they're required to... to my mind that will show me they are on a sticky wicket and have nothing that will stand up in court.. So far as i am aware, copies of cca are not enforceable .. they will need the original... If there is this much hassle in getting a copy of the original (rather than what is obviously a copy of a fiche or a copy of a copy) then i suspect that they're stuffed.. I'll keep you posted.. thanks for the interest... i've had a quick look at your thread, but i'm not really learned enough to offer you an opinion... other than from what i've seen the unconneced t&c's appear to fail the legibility test.. good luck FOTN

Pelham, You're right ! reverse is upside down from the bleed through -- was worried that this was my scanning to post it but i've checked what they've sent and you're right... so things are not quite as they contend.. Late Charges are £20 or £15 for a returned cc cheque.. which is pre regs but i think i've seen others at this time higher - so whether that is another anomaly i'm not sure.. As for interest I'm not sure this was a 0% account originally... and inactive for a while.. can't seem to find any really old statements.. but as with others as soon as i was at my limit the % rapidly climbed so i had no hope of making any impact on the capital.. I'm not sufficiently bright to decipher whether what i was charged was what was due i'm afraid ... but i'll see if i can find an old statement.. FOTN

Thanks Pelham... i'll wade thru the custard and post the result when i have a mo.... in the meantime all those with Cap1 probs may want to look at Lexis thread ... post no 480 here.. http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/172543-just-recieved-signed-capital-24.html#post2025635 I think there may be more safetey in numbers FOTN

Lexis, i think thats a cracking idea.. can you count me in ? just let me know whats required.. I think there's probably some more suport from others on my thread too.. i'll post a link..if thats ok.. We may also consider pressing their local MP... from what i can see there seems to be a recognition that CC debt is an issue that must be dealt with... hence the ministry of justice liscensing all these "debt counsellors" that have sprung up on the back of what CAG has been doing for free.. Also of course... banks behaving badly are an easy target right now.. and no doubt likley to be the subject of further regulation..which basically means more jobs for constituents in Nottingham to ensure they comply.. worth a thought.. FOTN FOTN

Ah.. so the TCC is a bit of a red herring then.. it seems despite the prominence they give it to have no significance if the prescribed terms are there.. Still need to find a snag with this paperwork.. FOTN

I think Cambo needs some advice on whether his creditors can enforce these debts.. anyone have the link to the CCA request letter.. thats seems a good place to start FOTN

subbing... FOTN

It's signed by MBNA in the top left corner of the 2nd scan next to a date stamp... not looked at the small print.. FOTN

Hi all, I take Pelhams point, but I'm happy to see others post their agreements here... just so long as they are similar...ie: Cap 1 of the same sort of vintage.. I do think there's something to be gained by comparing them.. f'rinstance.. mine has under "total charge for credit" at the time this agreement is made £1533.42 Comprising interest in the sum of: £1533.42 and thats all -- no reference as to the amount borrowed or any term or any apr etc..this is given some prominence in the agreement and conflicts with other terms.. but am i to assume that that is the total of their charges ? I notice that this clause is different/expanded in other agreements.. anyone have a view ? FOTN

trying it this way.. seeing if this is a better image.. http://i554.photobucket.com/albums/jj404/fangio/cap1agFE.jpg

Those with similar agreements.. can you post them up here ? lets put our heads together and pull them apart... FOTN

Sorry all, been distracted with the task of trying to earn a living... in the meantime i've had further correspondence from Ellie... but no change in their position and a default notice ... so it looks like they are pressing on.. not kept any old statements so can't compare interest rates etc..I'll try and scan better images for scrutiny... FOTN

Hi all, I've had more calls from MBNA / AEGIS than i can count... last weekend I had a particularly determined attempt from someone called "Craig" at one point both my mobile and home line ringing by Craig...i felt under seige... Whilst not exactly menacing, he was rude and threatening kept talking over me, I put the 'phone down and he rang again.. ultimately sounding more reasonable.. there were a number of unusaul numbers used .. for the record these were.. 07780870570 07785276206 Anyone else heard fron Craig ? FOTN

Thanks snooper,,, that's the mst helpful thread i've seen ! FOTN

Ellen, can't see your cca image, can you post it up or photobucket it... wouldn't mind a comparison with mine.. FOTN

Thanks car... in my industry a certified copy is generally a photocopy of the original stanped and signed by a solicitor as being a "true copy of the original"...in this instance a true copy is an exact copy and the solicitor certifying it must have seen the original to certify it.. are the same standards applied here... as elsewhere a "true copy" is neither true nor a copy..in the accepted sense.. sorry to be pedantic.. FOTN

hi, can anyone clear up the question of whether copy documents are sufficient for court action or whether the creditor must have the original to succeed in court ? fotn

FOTN

Toxic, that looks fine in my view.. FOTN

Hallas.. post it up.. i've just had some stuff thru from capone myself... happy to compare notes.. Rory, I had the same response they just sent current t&c's ... i disputed... they then sent another ... which appears to be an enforceable agreement... I've serious doubts as to whether it is a document that i signed,,but it couild be a first for Cap 1 ! take a look at it on my thread if you've the time.. grateful for an opinion.. as i need grounds to dispute it.. http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/178832-cap-one-agreement-recieved.html FOTN

Wow, ! I've finally found the Cap 1 crowd...I'm having some fun with Ellie Renshaw myself...in response to my cca request they tried to fob me off with a current t&c's...obviously this triggered the dispute letter.. and to be fair they did stop calling for a while... but now they're back.. and Ellie has Kindly sent me a signed copy of my cca.. Trouble is.. i'm sure it's hookey, and has been cobbled together from other docs ... there are odd "ghost" images of a bleed from the other side of the document which just don't add up.. It also had printed my name and address on it -- something i can never recall signing or seeing.. I need to dispute it but wouldn't mind the opinion of those who've seen more of these than me.. my thread here..I'v a couple of other caggers TOXIC, tracy, etc having their own battles with mbna etc ..who have been helpful.. ut i've not come across anyone yet who has had quite the same paperwork as me.. sorry to highjack.. but all opinions gratefully recieved.. link here... http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/178832-cap-one-agreement-recieved.html FOTN