Capquest CCA received, but it's an application form?

mistrey

Hi

In January I found out that Capquest recorded a default at my Dad's old address in 2005. My Dad emigrated before the default was recorded. Despite being on the electoral roll for a number of years, Capquest had never contacted me. When I found out about the debt, which they told me was for Capital one credit card, I requested a copy of the CCA. This arrived on Wednesday, but it is entitled "Ultra Short (1 minute) Application Form.

It has no interest % rates on it, no credit limit or repayment dates. Does this mean that it is unenforcable?? If so what do I do next?

Any help greatly appreciated. Thanks

RAS

Hi

This figures. There are a lot of Cap 1 application forms on here, tht they hope people will believe are CCas.

This means the debt is unenforceable. Unfortuantely it does not mean that the default is invalidated.

Is someone chasing the debt?

sutton111

RAS wrote: »

Hi

This figures. There are a lot of Cap 1 application forms on here, tht they hope people will believe are CCas.

This means the debt is unenforceable. Unfortuantely it does not mean that the default is invalidated.

Is someone chasing the debt?

I always thought with out the CCA thry would have to remove the default?

Dam. :mad:

fermi

IS MY AGREEMENT ENFORCEABLE (Via section 127(3) CCA1974).

PRESCRIBED TERMS FOR THE PURPOSES OF SECTIONS 61(1)(0) AND 127(3) OF THE CONSUMER CREDIT ACT 1974 Taken from schedule.6 (1983/1553) regulations

(If you just want to find out, skip the bits in between the stars it’s just some extra information)

**What do we mean by unenforceable?

In the Consumer Credit Act section 127 there is a provision for making an agreement unenforceable if it does not contain certain pieces of information.

Subsections 1,2,3,4 state which pieces of information these are, and everything mentioned there must be included within the body of the agreement, if one is missing the agreement is unenforceable.

How does unenforceable differ from enforceable with a court order only?

When an agreement is unenforceable it means that the court or the judge cannot make a ruling on it. The court cannot make it enforceable.

When an agreement is enforceable only by ruling of the court it means that the agreement can be stopped by the debtor but the court has the power to re-instate it and allow the credit to continue to enforce.**

The Prescribed Terms are these:

A Amount of credit

A term stating the amount of credit

B Repayments

A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following:-

(a) Number of repayments;
(b) Amount of repayments;
(c) Frequency and timing of repayments;
(d) Dates of repayments;
(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

C Rate of interest

A term stating the rate of interest to be applied to the credit issued under the agreement

D Credit limit

This may be a term or the manner in which it will be determined or that there is no credit limit.

---

Which of these applies to you depends on the type of agreement you have?

For a Running Account (credit card) agreement

BC and D Apply

For a Restricted Use Debtor Creditor Supplier

• Where the dealer is the supplier and the creditor is the one providing the finance.
• The money can only be used for the purpose it is given.
• There is no interest on the purchase (the cash price is the same as the total price)
• And there is no advance payment

A is applicable

For a fixed Sum Credit Agreement

A conventional credit agreement with none of the above restrictions

A and B apply

For a Hire Agreement

B is Applicable

This paper only covers section 127(3) of the Act agreements can also be unenforceable by contravention of sections 1 and 4 this will be the subject of the next paper.

Please note that these Prescribed terms where not changed in any way by the 2004/1482 Amendments although the form in which they appear on the agreement was. Subsection127(3) was repealed on the 6th of April 2007 so that unenforceability due to 127(3) will only apply to agreements executed before that date.

mistrey

Capquest are chasing me for this money. As I thought, it is not enforcable, so what do I do now? I would like to get a new car, but this is stopping me from getting the finance for it. Can I go to the County Court to hjave it removed from my file?

Merlinexcalibur

This figures. There are a lot of Cap 1 application forms on here, tht they hope people will believe are CCas.

Tell me about it, not above 'transferring' certain things to those application forms, either. I mean you open an envelope up ... and tend to notice certain things about the handwriting shall we say.

What needs to be done now, and someone here will assist with that no doubt is to send them the letter telling them they should cease collection until they provide what you requested. Until such time as they do, you will not communicate with them. Something along those lines anyway.

Merlinexcalibur

Ignore what I posted, seems you may be able to after all.

fermi

Re: my request under the Consumer Credit Act 1974

Thank you for your recent letter sent to me dated <date>, the contents of which are noted.

However, the reply received by me does not fulfil your requirements under the Consumer Credit Act 1974.

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter, dated <date>.

My request remains outstanding. The document supplied does not constitute a true copy of a credit agreement and that which you sent does not even contain all the prescribed terms and is not 'properly executed'.

An agreement must conform to regulations made under the provisions of section 60(1) Consumer Credit Act 1974 otherwise it cannot be properly executed.

These regulations are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). The regulations set out the form and content of agreements. For an agreement to be compliant with the regulations it MUST embody within the agreement, the prescribed terms laid out in the SI 1983/1553. Without the prescribed terms the agreement does not conform to section 60(1) Consumer Credit Act 1974 and therefore cannot be properly executed as described in section 61(1).

For your information in case you are unsure, the prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: -

• A term stating the credit limit or the manner in which it will be determined or that there is no credit limit.

• A term stating the rate of any interest on the credit to be provided under the agreement and:

• A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following:-

(a) Number of repayments;
(b) Amount of repayments;
(c) Frequency and timing of repayments;
(d) Dates of repayments;
(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

Now, nowhere on the alleged agreement that you supplied is there any reference to the final two items above.

I wish to remind you that the absence of these terms will render a document unenforceable in court and I also wish to point out that these terms MUST be contained within the agreement and NOT in a separate document headed terms and conditions or words to that effect.

Therefore, you have failed to supply an enforceable and properly executed document and therefore remain in default of my legal request under the Consumer Credit Act 1974.

As you are no doubt aware section 78(6) states:

If the creditor fails to comply with Subsection (1)

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement;

Therefore this account has become unenforceable at law.

You have failed to comply with a lawful request for a true copy of the said executed agreement.

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS and with be VIGOROUSLY defended, putting you to a STRICT PROOF of your claim and COMPLIANCE with the law.

If you cannot supply me with a document, which complies with the Consumer Credit Act 1974, and ALL of the Regulations made under the Act, I shall be forced to make a complaint to Trading Standards and I will also draw this to the attention of the Office of Fair Trading.

You had until <date> to provide me with the true copy I requested. After that date you entered into default of my request. Whilst the account is in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you.

Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agencies (or any third party).

To register information with a credit reference agency, you must have written consent from the data subject to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. Any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office.

Therefore you have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint, otherwise your conduct will be reported to the Office of Fair Trading, the Financial Ombudsman and Trading Standards. Any investigation undertaken by them may affect your ability to hold a consumer credit license in the future.

Should you not have any signed and properly executed credit agreement in relation to this alleged debt, please confirm this in writing to me.

I would appreciate your due diligence in this matter.

I look forward to your reply.

Yours faithfully

sutton111

mis_trey wrote: »

Capquest are chasing me for this money. As I thought, it is not enforceable, so what do I do now? I would like to get a new car, but this is stopping me from getting the finance for it. Can I go to the County Court to have it removed from my file?

I'm trying that route to remove a Next default (Cabot DCA) I paid mine, but they have only marked it as settled. I've written to them asking for them to remove it, if they don't I'm filling an N1 form from the County Court.

sutton111

fermi wrote: »

Re: my request under the Consumer Credit Act 1974

Thank you for your recent letter sent to me dated <date>, the contents of which are noted.

However, the reply received by me does not fulfil your requirements under the Consumer Credit Act 1974.

The Act demands that I be supplied with a true copy of any properly executed credit agreement that exists in relation to the above account. I may ask for this on demand providing that a fee of £1.00 is paid. This fee was sent with my original letter, dated <date>.

My request remains outstanding. The document supplied does not constitute a true copy of a credit agreement and that which you sent does not even contain all the prescribed terms and is not 'properly executed'.

An agreement must conform to regulations made under the provisions of section 60(1) Consumer Credit Act 1974 otherwise it cannot be properly executed.

These regulations are the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553). The regulations set out the form and content of agreements. For an agreement to be compliant with the regulations it MUST embody within the agreement, the prescribed terms laid out in the SI 1983/1553. Without the prescribed terms the agreement does not conform to section 60(1) Consumer Credit Act 1974 and therefore cannot be properly executed as described in section 61(1).

For your information in case you are unsure, the prescribed terms referred to are contained in schedule 6 column 2 of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and are inter alia: -

• A term stating the credit limit or the manner in which it will be determined or that there is no credit limit.

• A term stating the rate of any interest on the credit to be provided under the agreement and:

• A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following:-

(a) Number of repayments;
(b) Amount of repayments;
(c) Frequency and timing of repayments;
(d) Dates of repayments;
(e) The manner in which any of the above may be determined; or in any other way, and any power of the creditor to vary what is payable.

Now, nowhere on the alleged agreement that you supplied is there any reference to the final two items above.

I wish to remind you that the absence of these terms will render a document unenforceable in court and I also wish to point out that these terms MUST be contained within the agreement and NOT in a separate document headed terms and conditions or words to that effect.

Therefore, you have failed to supply an enforceable and properly executed document and therefore remain in default of my legal request under the Consumer Credit Act 1974.

As you are no doubt aware section 78(6) states:

If the creditor fails to comply with Subsection (1)

(6) If the creditor under an agreement fails to comply with subsection (1)—

(a) he is not entitled, while the default continues, to enforce the agreement;

Therefore this account has become unenforceable at law.

You have failed to comply with a lawful request for a true copy of the said executed agreement.

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS and with be VIGOROUSLY defended, putting you to a STRICT PROOF of your claim and COMPLIANCE with the law.

If you cannot supply me with a document, which complies with the Consumer Credit Act 1974, and ALL of the Regulations made under the Act, I shall be forced to make a complaint to Trading Standards and I will also draw this to the attention of the Office of Fair Trading.

You had until <date> to provide me with the true copy I requested. After that date you entered into default of my request. Whilst the account is in dispute, you are not permitted to ask for any payment, nor am I obliged to offer any payment to you.

Furthermore, whilst the dispute remains, you are not entitled to charge any interest on the account, nor make any further charges to the account. Additionally, you are not entitled to register any information on this account with any credit reference agencies (or any third party).

To register information with a credit reference agency, you must have written consent from the data subject to collate and share such information. This consent is given in the form of a signed credit agreement, so until you produce such an agreement, you may not do this.

The requirement for consent to share data is a clear requirement of the Data Protection Act 1998. Any such attempts to share my data without my consent will be met with a complaint to the Information Commissioners Office.

Therefore you have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint, otherwise your conduct will be reported to the Office of Fair Trading, the Financial Ombudsman and Trading Standards. Any investigation undertaken by them may affect your ability to hold a consumer credit license in the future.

Should you not have any signed and properly executed credit agreement in relation to this alleged debt, please confirm this in writing to me.

I would appreciate your due diligence in this matter.

I look forward to your reply.

Yours faithfully

Your a mind of information, Thanks.

mistrey

Wow thanks Fermi!! That's miles better than anything I could have written

Capquest have today put a query on my account with Experian, is this right, don't they have to stop reporting altogether?? I'm so mad about this as i have actually already paid this debt to Lowell Portfolio, who I have a letter of satisfaction from, but because it has a different reference number (Lowell's own) to Capquest (Capquests own) they won't accept it as proof of statisfaction. I can't beleive these theives are allowed to operate!!