Capital One failed to comply with CCA request (I think)

[PriorityOne]

For ease of reference I have enclosed copies of the letters which I have previously send you by recorded delivery. I know that you received these letters as I was able to check with Royal Mail.

 

I now look forward to a positive response.

 

 

Personally, I would leave out the above. There is no need for you to send copies of anything....they should be fully aware of their legal obligations without you needing to help them along.

 

Besides, you don't really want a positive response, do you ? While there is no enforceable CCA.... there is also no enforceable debt.

 

[120805]

I just want to make sure that I am giving them every opportunity to produce the cca, coz if they take me to court then it will look good on my part.

 

Maybe am just too soft :o

[PriorityOne]

I just want to make sure that I am giving them every opportunity to produce the cca, coz if they take me to court then it will look good on my part.

 

Maybe am just too soft :o

 

A CCA request is a legal request for information and they have a duty to comply before they can legally pursue you for payment. You don't need to provide them with any nore opportunities and/or reminders of that fact.

 

In the unlikely event of them taking you to court without producing a CCA.... then non-compliance of a CCA is a complete defence.

 

[120805]

I will adjust the letter then.

 

Starting to feel like I should have shares with the royal mail as am always at the post office

[120805]

Been really busy over weekend but got 2 letters from Cap1 on Friday. The first letter is dated the 22/05/07 and they are serving me a default notice giving me 23 days to pay the outstanding amount from the date of the letter.

 

I also got a letter dated the 23rd of May saying

 

Dear 120805

 

Thankyou for writing to us about the letters you've received from us. Im sorry for any embarrassment or inconvience that they have caused.

 

We send an automatic letter generated by our system when your payments are behind. Im afraid we are unable to stop these, so you would continue to receive these letters if your account remains behind with payments or overlimit. Im sorry if this made matters worse.

 

Your account is currently three months in arrears and £** over your credit limit. There is a new total now due of £*** by 12th June 2007.

 

Im afraid that while you remain behind in payment, we will continue to send letters and we dont find this unreasonable. We have a legal obligation to contact you to inform you about the status of your account.

 

We issued you a default notice on 21 May for £***. If this amount isnt paid within 10 days of that notice, we will default your account. Your account will then be passed to a debt collection agency to claim back the outstanding debt.

 

If you find you are experiencing difficulties with your payments and you would like some help, please contact our specialist support unit on 0800 952 4914.

 

I hope that I have explained things clearly for you. However, if you have any more questions about this, please write back to me within four weeks. My address details are in the leaflet ive included, which also outlines our complaints procedures. If I dont hear from you, I will assume your complaint is closed.

 

Please accept my apologies for any inconvenience this has caused. I hope we are able to put this behind us and move forward from here.

 

Yours sincerely

 

Executive office manager

 

 

 

 

 

Any ideas on what to respond us? Other than shove your apology!!!

[120805]

Ive still not reported them to OFT coz as I said ive been really busy (Car written off in crash and had to find funds to buy new car, daughter being bullied and school not helping and the list goes on!) But am really unsure as to what I say to OFT. What if OFT say why did you ask for CCA when youhave been paying it with no complaints until recently? Basically am ashamed of myself

[weaver440]

Hi 120805,

 

Please do not be so hard on yourself. Firstly with regards to the OFT, just tell them how it is - thats all I did. Just a simply worded straight to the point letter stating that you have requested documents from the lender as is your right and they have failed to comply which you believe means that they are commiting an offence. Enclose copies of all your correspondence with Cap 1 when you send the letter. They are not here to judge us as to why we want this info - it is pure and simply our right to have it should we want it, for whatever that reason may be. I had a letter from the OFT regarding my complaint about british gas loans and there was absolutaly no suggestion of disproval or evidence of them being judgemental. On the contrary, I really felt that they were taking this complaint very seriously indeed.

Good luck, and instead of feeling ashamed you should feel proud because you are standing up against these bully boys who have made our lives miserable! Lets not forget that in some extremely sad cases people have ended their lives because of their debt problems and the very same financial institutions that should have helped these people instead added to their misery and some may say should even be held accountable! Lets get the Bug*ers.

[PriorityOne]

.

 

Im afraid that while you remain behind in payment, we will continue to send letters and we dont find this unreasonable. We have a legal obligation to contact you to inform you about the status of your account.

 

Their legal obligation is to supply you with a copy of your CCA upon request....

 

If you find you are experiencing difficulties with your payments and you would like some help, please contact our specialist support unit on 0800 952 4914.

 

... pass.

 

 

Sorry to read about your car accident .... I have had to deal with exactly the same thing these past 2 weeks, so know exactly what you are going though !!...

[120805]

Thankyou everyone for your kind words of support and encouragement:)

 

Am going to try and type up a letter to OFT and Cap1 just now. Never really thought about writing to OFT (silly me) but its always easier to write things down rather than say them. Will need to buy an ink cartriage this week though. All these letters dont come cheap with postal costs, envelopes and ink!! But hopefully it will all sort itself out in the end.

[120805]

Hows this for a letter to Cap1

 

 

Dear Sir/Madam

A/C NO

 

I do not acknowledge any debt to you or your client.

 

Please be advised that I have contacted Capital One plc directly and requested further information under the legislation contained within s.78(1) Consumer Credit Act 1974 (S.77 (1) for fixed sum credit). Please note this was requested on 2nd April 2007, and as I have received no response this debt is now unenforceable.

 

To this end I would like you to note that I will not enter into any further communications with your company on this matter, unless and until my request is actioned.

 

I also wish to make it absolutely clear that personal callers will be viewed as trespassers, and action will be taken, including but not limited to, Police attendance

 

As you are aware, a credit agreement that is not properly documented and signed by the customer is totally unenforceable under the CCA and therefore is a complete defence to any court claim that is issued.

You were in breach of the Consumer Credit Act 1974, on 24th April 2007 and one month later on 24th May 2007 you were guilty of committing a criminal offence.

I expect to hear from you within 10 days of this letter, acknowledging that this debt is indeed unenforceable, else you leave me with no alternative but to contact Fife Trading Standards, and any other relevant statutory bodies to advise them of your conduct.

In your letter dated 22 May 2007 you refer to a default notice. I would like to remind you that this account has been in dispute for quite some time now and under OFT guidelines you are not allowed to pursue a debt that is in dispute and this should be recorded onto my credit report not any missed payments and most certainly not a default. Please note that if a default is applied onto my credit file then I will file a claim at court against Capital One for miss-use of my financial records and making it difficult for me to obtain any further credit. If this did happen I would also be looking for compensation of a considerable amount for your persistant harassing letters asking for payment onto a debt which is unenforceable, for handling my financial records when you have no right to, and for not complying with my request to stop harassing me for payment onto a debt which is not mine! I now fully expect you to remove your name from my credit report as you have no right to be handling my financial information.

 

Take note, that any legal action you may contemplate will be both vigorously defended and contested.

[karen654321]

Hiya just reading through your thread. Fantastic letter above. I wonder if you have hard anything back from oft or capital one? Im just about to do first letter to them regarding a credit agreement they sent but isnt signed. Looks like i may have a battle on my hands though..

 

karen

[120805]

Hi Karen654321,

 

Cap 1 are playing games with me now ! They have now issued me with a default and passed my debt onto a company called "Debitas". Am getting anything up to 5 phone calls a day on my mobile from this Debitas and several letters a week from them. The front of the envelope even reads Debitas in big bold letters (how embarrassing).

 

Am going to contact TS about Cap 1 and see if they can help. Am also considering sending off for a SAR and reclaiming all charges in the hope thats there will be enough to clear off the balance and get rid of the default and Cap 1 forever!!

[the main man]

Hi 1200805,

 

I would just ring Consumer Direct who will refer this straight away to your local TS, Cap1 are just digging the biggest hole for themselves at the moment.

 

I was contacted by TS about the very late/unenforceable agreement that they sent me. I just provided all the info to date, gave them my phone no and email and they have been in regular contact.

 

After reading all the info I have provided them, TS have reported them to the OFT for the offenses that they committed and have confirmed that they have not complied fully with the section 78 request (no T&C relevant for when account was opened). TS are now in contact with our Friends in Nottingham and I am just awaiting a decision.

 

I must admit it has lifted a weight off my shoulders knowing that someone is fighting your corner. So I wish you the best of luck and hope these faceless idiots get all they deserve!!

[miss muppet]

Very interesting main man, what is the phone number for Consumer Direct and who are they, do you think its better going throu them rather than direct thro TS?

[surprise]

120805

 

Have Cap One ever tried to pass anything off as an agreement form to you? I am having problems the same as you but I have reported them to the ICO and the FOS are also dealing. They sent an application form to me and tried to tell me it was an agreement. I've quoted the following to them in my letters.

 

Furthermore, you should remember that a creditor is not permitted to take any action against an account whilst it remains in dispute. The lack of a credit agreement is a very clear dispute and therefore the following applies:

• You may not demand any payment on this account, nor am I obliged to offer any payment to you.
  
• You may not add any further interest or charges to this account.
  
• You may not pass this account to any third party.
  
• You may not register any further information in respect of this account with any of the credit reference agencies.
  
• You must remove any default notice you have placed on my credit file.

The fact that they passed your account on is unlawful. I would be tempted to CCA Debitas. This will then get them off your back as I understand from another thread that Cap One have confirmed that don't have agreements only application forms.

Cap One have now removed my default.

Good luck.

[the main man]

Hi Miss Muppett,

 

All the info is on the link below, but think you have to go through Consumer Direct first and they refer it to your local TS officer who contact you.

 

Well that is how it happened with me anyway.

 

All the best

MM

 

Consumer Direct

[miss muppet]

Ta ever so MM:)

[Josie8]

Keep us advised of developments

[120805]

Hi everyone, thankyou all so much for your thoughts and views. I will definatly go through consumer direct.

 

I feel quite foolish now for even CCA them in the first place. I thought that by doing this it would mean one less debt to worry about but the strain of all this is starting to prove to much for me.

 

I didnt think that I would have much to reclaim on charges which is why I went down the CCA route instead of reclaiming charges. It now looks like I will have to do that anyway though as I am getting far too stressed out with all of this. Am terrified that a creditor might take me to court for payment and then I would end up with a CCJ (which trust me I dont need). The reason I fear this is because my husband followed all advice given to him about a loan and now he has been summoned to court for payment. Sorry am feeling really down about everything just now so am probably not much help or support to anyone else just now who is trying to fight off a creditor.

 

Promise that when I next respond on this thread that I will be more positive. I probably just need a good nights sleep.

 

 

 

120805

[miss muppet]

You are not foolish at all - all of us feel like you do at some time or another, the thing is you and your husband have the support of this group now and believe me as time goes on you will feel stronger, sleep well.

[PriorityOne]

Hi everyone, thankyou all so much for your thoughts and views. I will definatly go through consumer direct.

 

I feel quite foolish now for even CCA them in the first place. I thought that by doing this it would mean one less debt to worry about but the strain of all this is starting to prove to much for me.

 

Why do you feel foolish ?... they have not complied and should not have passed the account to Debitas whilst in dispute with a CCA request. OFT need to know about this as it goes against their rules for debt collection. If Cap. 1 don't have a CCA for you, then it's unlikely that Debitas will have one... so for the cost of £1 and rec. delivery... you can send a CCA to Debitas as well..... or the following letter.

Dear Sir/Madam

 

Your Ref;

A/C NO

 

I do not acknowledge any debt to you or your client (if they have mentioned Cap. 1).

 

Please be advised that I contacted Cap. 1 on xx/xx/2007 and requested a true copy of my Consumer Credit Agreement (Consumer Credit Act, 1974) on xx/xx/2007. To date, I have received no response and therefore, this account remains in dispute and is unenforceable.

 

I will not enter into any further communications with your company on this matter, unless and until my request is actioned by Cap. 1.

 

I also wish to make it absolutely clear that personal callers will be viewed as trespassers and action will be taken, including but not limited to, Police attendance.

 

Yours faithfully

 

I didnt think that I would have much to reclaim on charges which is why I went down the CCA route instead of reclaiming charges. It now looks like I will have to do that anyway though as I am getting far too stressed out with all of this. Am terrified that a creditor might take me to court for payment and then I would end up with a CCJ (which trust me I dont need).

 

Non-complaince of a CCA request is a complete defence in any court action that is taken against you.... and will prevent them going for a CCJ as long as you defend it.

The reason I fear this is because my husband followed all advice given to him about a loan and now he has been summoned to court for payment.

 

Did the creditor/DCA comply with his request.... assuming that a CCA request was made ?

 

Sorry am feeling really down about everything just now so am probably not much help or support to anyone else just now who is trying to fight off a creditor.

 

We have all been where you are right now.... so please don't despair !

 

Promise that when I next respond on this thread that I will be more positive. I probably just need a good nights sleep.

 

120805

 

[Josie8]

Don't panic.......this is what the DCA is trying to do by abusing the law aided and abetted by an ineffectual Trading Standards and OFT. Stay strong. They have committed an offence and non production of a cca is a complete defence in court.

 

Look at this link http://www.consumeractiongroup.co.uk/forum/debt-collectors-debt-collection/90012-just-been-court-cl.html..............

[120805]

What if Cap 1 took me to court and the Judge asked me do you owe the money? Of course my answear will be yes as I do. I reckon that the judge would then come down on me for trying to get out of my debts without paying them off. Any thoughts?

 

Am going to look at link to thread now, thanks for that:)

[Josie8]

If they have not produced a true executed agreement then it is irrelevant what the judge thinks as by law he cannot enforce the agreement. The House of Lords ruling in Wilson v Sec of State for trade & Industry made it clear that in the event of no enforceable agreement the Creditor loses any monies outstanding (as a penalty I guess)

[PriorityOne]

What if Cap 1 took me to court and the Judge asked me do you owe the money? Of course my answear will be yes as I do. I reckon that the judge would then come down on me for trying to get out of my debts without paying them off. Any thoughts?

 

Am going to look at link to thread now, thanks for that:)

 

Until Cap. 1 are able to produce a CCA.... then you are not able to answer that question... as you are unable to guess what is stipulated on there. That is the answer I would give, if asked in court. How can a "guess" be re-enforced when there is no paperwork to back it up ? You are not even sure it exists...