Re Cca and unknown default

xxkizxx

I applied to capitalone for a copy of my credit agreement as they say this account is in default which i knew nothing about did not recieve a default notice, and today recieved this:
Account no xxxxxxx

Thankyou for your recent letter requesting copy documents for your account.

You requested copies of the executed credit agreement and a statement of your account under section 78 of the Consumer Credit Act 1974.
Please find enclosed a copy of your agreement as requested, in accordance with section 78 of the Consumer credit Act 1974 and the Consumer Credit (Cancellation Notices and Copy Documents) Regulations 1983, this is your original agreement and if any terms have been varied, then the copy agreement will include the updated terms,in addition your personnal details, the signature and date of signature have been omitted from the copy provided under regulation 3 ot the Consumer Credit Regulations 1983.
Your account is in default we are not required to provide you a copy of the default notice and statement of default, however we can confirm that a statement of default was issued on the 9th of january 2009.

Can i take this furthur as no default notice was ever recieved from this account and there is no copy of my signature on the credit agreement, where do i go from here, please help needed need to get this default removed.

xxkizxx

28th May 2009
Dear Sir / Madam
Account Ref No xxxxxxxxxxx
Re: My request under s77/78 of the Consumer Credit Act 1974.

My request for a copy of my properly executed Consumer Credit Agreement remains outstanding.

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 14th March 2009. Upon receipt of the original request the specified account legally entered into a disputed status.

My request remains outstanding as I have not received the requested original signed CCA agreement!

As you will know, under the Consumer Credit Act 1974, a judge is not permitted to make any enforcement order unless the creditor can provide a true signed copy of the original credit agreement. This means that unless you can produce such an agreement, this alleged debt is not enforceable in law.

You have until 30th May 2009 to provide me with the true copy I requested. After that date you enter 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.

The time limits, which are laid down in the Consumer Credit (Prescribed Periods for Giving Information) Regulations 1983 are clear. You must supply an executed credit agreement within 12 working days of a proper CCA request. If you fail to comply with a legitimate request the account enters a default situation and if you fail to comply after a further 30 days you commit an offence.

Therefore you have 7 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.

Take further note that continued telephone calls after the receipt of a request not to call may constitute a criminal offence under Section 127 of the Communications Act 2003.

Communicate in writing and ONLY in writing, your telephone calls will NOT be answered.

To sum up, although I will not be required to make any further payments to you until you provide me with the signed document I have requested, as a good will gesture I will continue to make the minimum payments, showing that at least I can hold up my end of the contract. Should you not have any signed 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

I have to day sent this by recorded so lets see what happens next! Does anyone know if they cant send me the true copy can the default be removed? And if so by capitalone or will i need to write to the Cra myself?

Moggles_2

Capital One has reasonable online services.

Have you checked your online monthly statements in the period up to January 2009? This should throw some light on the mystery.

xxkizxx

Cheers for that moggles, have tried but says my account has been locked! tried to phone customer services but they are useless telling me as the account is now in default and been passed on to a Dca they will no longer discuss it with me.

never-in-doubt

xxkizxx wrote: »

I applied to capitalone for a copy of my credit agreement as they say this account is in default which i knew nothing about did not recieve a default notice, and today recieved this:
Account no xxxxxxx

Thankyou for your recent letter requesting copy documents for your account.

You requested copies of the executed credit agreement and a statement of your account under section 78 of the Consumer Credit Act 1974.
Please find enclosed a copy of your agreement as requested, in accordance with section 78 of the Consumer credit Act 1974 and the Consumer Credit (Cancellation Notices and Copy Documents) Regulations 1983, this is your original agreement and if any terms have been varied, then the copy agreement will include the updated terms,in addition your personnal details, the signature and date of signature have been omitted from the copy provided under regulation 3 ot the Consumer Credit Regulations 1983.
Your account is in default we are not required to provide you a copy of the default notice and statement of default, however we can confirm that a statement of default was issued on the 9th of january 2009.

Can i take this furthur as no default notice was ever recieved from this account and there is no copy of my signature on the credit agreement, where do i go from here, please help needed need to get this default removed.

Have a read here: http://forums.moneysavingexpert.com/showthread.html?p=21373919#post21373919

Specifically regards to Unenforceability (i.e. no signature) see here and read down - you need to see the bit entitled Prescribed terms! http://forums.moneysavingexpert.com/showthread.html?p=20459909#post20459909

Good luck whatever you do.... i'd deffo start posting on one of the above threads though as they are suited to your query....

never-in-doubt

You need to start by sending the account in dispute & S.10 notice all in one so they actually remove the data and deal with the original dispute.

Letter is below...

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Letter to send:

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Account in dispute

Request for a copy of the Original Credit Agreement under the Consumer Credit Act 1974

Dear Sirs

Re: ACCOUNT NUMBER: XXXXXXX

Further to previous unacceptable correspondence, I have my doubts as to the enforceability of my account, in the first place. I am more than happy to draw a line under this if you agree to immediately remove all data registered against me with all the credit agencies.

Refusal to send me a copy of any default notice is in itself questionable, however the omitted prescribed terms in the CCA is evidence enough in itself that my agreement is not enforceable.

If you refuse, then I hereby formally request a copy of my Consumer Credit Agreement, pursuant to s.77/78 of the Consumer Credit Act 1974.

I require you to provide me with a true copy of the credit agreement relating to any account you deem to be mine, together with any other documentation the Act requires you to provide. I expect you to comply fully and properly with this request, within the statutory time limit (21 days). You are reminded that should you fail to comply with my request; the provisions of s.77 will apply.

If it is your view that you are not the creditor, s.175 of the CCA 1974 applies in the case of a simple assignment, and places a duty upon you to pass this request to the creditor. In the case of an absolute assignment, you are a creditor as defined by s.189. If you contend that you purchased the rights but not the duties of any agreement, you are reminded that s.189 of the Act is clear that an assignment is of both rights and duties.

Your attention is drawn to ss.5(2), 3(b),6 and 7 of the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR). I enclose a personal cheque in the sum of £1.00, which is the statutory fee. Note that these funds are not to be used for any other purpose.

If you are unable to comply fully and properly with this request, you should confirm this in writing at the earliest opportunity, and certainly within the statutory time limit for compliance, and return the fee and then remove the incorrect entry from your systems.

You should also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect. This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

Should you refuse to comply, you must within 21 days, provide me with a detailed breakdown of your reasoning behind continuing to process my data. It is not sufficient to simply state that you have a ‘legal right’; you must outline your reasoning in this matter and state upon which legislation this reasoning depends. Should you not respond within 21 days I expect that this means you agree to remove all such data.

Furthermore you should be aware 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 as such the following applies.

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.
* You may not add further interest or any charges to the account.
* You may not pass the account to a third party.
* You may not register any information in respect of the account with any credit reference agency.
* You may not issue a default notice related to the account.

I do, expect the main actions to be dealt with, as matter of course, and look forward to hearing from you within the prescribed timescales quoted.



Yours faithfully
Sign digitally

never-in-doubt

xxkizxx wrote: »

I have to day sent this by recorded so lets see what happens next! Does anyone know if they cant send me the true copy can the default be removed? And if so by capitalone or will i need to write to the Cra myself?

No they can refuse to send it and some do, they call your bluff as the only way to get it removed is via enforcement and the lender lives in the hope you'll be scared to take them to court, but if you genuinely have a copy of an unsigned agreement then yes, i'd be demanding removal and non payment.

It all depends on assignment, you may be better next questioning the validity of said assignment to see if Crappy1 actually done this lawfully, if not then you may get the default removed. This is where successes come from as only 1 default is permitted per debt.

xxkizxx

Cheers never in doubt will send the above letter tomorrow by recorded delivery the credit agreement they sent contained no details about me or my account at all,and the credit card was taken out at least 6 years ago will see how we go!