Copy of Credit Agreement Supplied by DCA

privateryan_2

I'm a new poster... but have been using this forum avidly over the past few months helping me to resolve an issue I have with a DCA that is giving me grief... now I need some unique advice!

Lowell's Debt Collection have contacted me regarding a debt in my name from an address in my town, and have been chasing it from me for the past 5months. First off I told them it was nothing to do with me, they told me to send them a copy of my driving licence (which I did straight away) and all went quiet! And I thought that was that...

...I then get a letter from them saying that their "Trace Department" had checked the electoral register and confirm I live at my house (uh... DUH.. I already told them I live at my house) and it all started again.

From the advice on this forum, I did the old "demand a copy of the CCA and statements and notice of assignment" letter sending trick, and heard nothing for a month... hoping the time would elapse and the amount would become irredemably whatever...

...yesterday a copy of the requested information (well the CCA and statements) dropped through the post! (i.e. 12days+2days+12days)

The Signature on the CCA looks like mine (near enough), but a kids version of it...

It's only a 'small' debt (£500ish), so I could 'just pay it', especially as I could no doubt negotiate the amount... but they've already registered a default against me which has scared my otherwise excellent credit report So paying anything would confirm that default and that I am admitting that the alleged debt belongs to me... but the default should drop off next year anyway I think as the 6 years would be up...

What do I do now?? They didn't get the CCA to me within the 12+2Days, so the debt is only enforcable with a Court Order... so can I call their bluff on that perhaps?? Would they file for a CCJ on a £500 debt that's in dispute? And having looked at the statement - 70% of the debt is Overlimit and late charges on the Credit Card anyway...

Equally they didn't send the information recorded delivery ... so I could just say I never got it??

As you can tell... my mind is racing around in circles looking for a way to combat this minefield... So I would relish some expert advice!:money:

Yours... Stressfullnessly....

Ryan

uncle_pablo

Sounds like you made the fatal error of sending you DL in. From what I have seen on this forum - these DCAs wouldnt hesitate to get a blank agreement and forge your signature on it to make you pay.

Not sure how you can get back at them - hopefully someone else will have that answer.

Good Luck.

rog2

Although Lowell can not pursue you for payment without a Court Order, I would be worried in that someone HAS used your details in order to fraudulently obtain credit.
First of all I would push Lowell out of the equation - blank them completely - in the UNLIKELY event that they do go to court, your first defence is that Lowell did NOT provide you with a cca within the time frame, and when they eventually provided you with a document the signature on that document was not yours.
Then get on the phone to National Debtline, or the CAB - they will advise how best to respond to Lowell, and may, if you ask them to, contact Lowell on your behalf.
Remember it is up to a Debt Collector to PROVE that you are the genuine 'debtor' - not the other way around.
One further caution - do not sign any agreement that, on the face of it, allows Lowell to report the 'alleged debt' as identity fraud, on your behalf.
The further that you can distance yourself from these people the better.

shane5408

Hi Guys,

I was not aware a debt is only enforcable by the court if the creditor/DCA fails to provide CCA Request within the prescribed period (12+2days etc). Could you point me to the relevant legislation in the ACT that states this? I am aware after 12 days they are in default and after 30 days they commit an offence.

Ryan, Even if they provided you with a CCA if it does not contain all the prescribed terms then by virtue of sec 127(3) it is unenforcable. Are you able to post up a copy of it?

regards,
shane

privateryan_2

Thanks for the advice so far! :beer:

It *is* a little concerning to think that someone has undertaken identity fraud with my details... but i have full Identity Protection with CPP... they just don't 'cover' the financials for this attack because it's too old... the debt is from over 5 years ago...

The original Creditor is Capital One... so I'm not surprised it's happened as they give their cards to anyone (I heard even a dog managed to get a Capital One Credit Card)

I will post up a copy of the CCA somehow (any advice on how I can do that? I can scan a copy... so will look at putting it on the web somewhere)

I just don't know what to do next with Lowells... it says in the cover letter that came with the CCA/Statements that I should contact them now to discuss how to clear 'my indebtedness to them' which REALLY *&*&&es me off!!!! And I even wrote the whole "I do not acknowledge any debt to your company" on my correspondence to them... I feel like taking THEM to court for Libel or something???!

Ryan

shane5408

Hi Ryan,

With the original creditor being Capital One I can pretty much guarantee the alleged agreement is not enforcable. It will most likely be a typical precontractual application form missing prescribed terms rendering it completely unenforcable.

With regards to Lowell taking this to court I cannot fathom why they would even try. First of all the debt is only £500, not worth them forking out court fees to try and reclaim it and secondly they haven't a chance in hell of getting an enforcement order as the agreement is missing prescribed terms and therefore irredemably unenforcable. Lastly, I highly doubt they are the legal owners of the debt, most likely they are simply acting on behalf of Capital One meaning any legal action must be instigated by Capital One and not Lowell.

Lastly, did you receive any t&c's with the CCA Lowell sent? And if so were they current to the time you opened the acount? If the answer is no to the aformentioned then Lowel have not fulfilled their obligations to provide a copy of the agreement, and 'any other document referred to in it.' They remain in default until they fully comply and while in default are not allowed to enforce the debt in any way.

kind regards,
Shane

privateryan_2

Shane - I have reviewed what Lowell have sent me, and it sounds very much like it would be classed as a Precontractual application... I will post it after this post so as not to make it too long

I notice in the wording it does indeed refer to 'Terms and Conditions' which were not supplied by Lowells - they have only supplied the front page which I will post in a sec.

What do I say to Lowells next?

shane5408 wrote: »

Hi Ryan,

With the original creditor being Capital One I can pretty much guarantee the alleged agreement is not enforcable. It will most likely be a typical precontractual application form missing prescribed terms rendering it completely unenforcable.

Lastly, did you receive any t&c's with the CCA Lowell sent? And if so were they current to the time you opened the acount? If the answer is no to the aformentioned then Lowel have not fulfilled their obligations to provide a copy of the agreement, and 'any other document referred to in it.' They remain in default until they fully comply and while in default are not allowed to enforce the debt in any way.

kind regards,
Shane

privateryan_2

Credit Agreement Regulated by the Consumer Credit Act 1974

Please issue to me a Capital One Credit Card and PIN. I authorise Capital One to search the files of any Credit Reference Agency. The Credit Reference agencies will record details of Capital one’s search and my application. You may also add to my record with credit reference agencies details of how I conduct my capital one account (including defaults). I confirm that all the information I have given is true and complete. I understand that this information will be checked with fraud prevention agencies and if I give you false or inaccurate information and you suspect fraud you will record this.

Capital One and other organisations may use and search these records to:

- Help make decisions about credit and credit related services such as insurance for me or members of my household

- Trace debtors, recover debt, prevent fraud and to manage my accounts

- Check my identity to prevent money laundering, unless we are satisfied about your identity

Fraud prevention agency records will also be shared with other organisations to manage insurance policies and help make decisions on motor, household, credit, life and other insurance proposals and insurance claims for me and members of my household. The credit reference agencies and fraud prevention agencies will also use the records for statistical analysis about credit and fraud.

I have read the terms and conditions setting out the agreement with capital One and, if my application is accepted, I agree to be bound by these terms and conditions, as amended from time to time. I am over 18 years of age.

Credit Scoring. Capital One uses a technique known as ‘credit scoring’ in deciding whether to open an Account in your name and if so, what credit limit you will be given. Capital One will also use this technique throughout the life of this agreement to assess your credit limit and the interest rate and other charges to be applied to your account, all of which may be varied.

Your Information and Marketing. Important: Please read “Use of Information” overleaf (section 23 of the agreement) which sets out how your information will be used. By signing this application, you agree that information about you may be used like this, regardless of whether or not you application is accepted. One of the ways your information will be used is to send you information or phone you about other products or services offered by Capital One or other companies. Your Name, address and phone number may be given to those other companies for that purpose. If you do not wish to receive marketing material and you have not already advised us, please write to us at capital one bank, PO Box 5285 Nottingham NG 3YN

This is a Credit Agreement regulated by the Consumer Credit Act 1974. Sign it only if you want to be legally bound by its terms:

moonlightpjs

Its an application form - not a true, executed CCA Hold on until they have committeed an offence (12+2+30 days) and then report them

shane5408

Hi Ryan,

Two things spring to mind. Firstly, s 127(3) of the ACT:-

127(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a)(signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

and

S59(1):-
An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.

Now to me you can use both of these arguments to render the alleged agreement unenforcable. The firsrt is applicable because it sitpulates that as a bare minimum the agreement must contain ALL prescribed terms and be signed by the debtor in order for a juge/court to even consider giving an enforcement order (ie ruling in creditors favour, should it ever come to court which is highly unlikely) In the absence of these core terms a judge/court is precluded from making an enforcement order.

Secondly, the s59 argument purports that any agreement to enter a future agreement is void, basically as this is clearly a precontractual document you are in essence agreeing to an application for credit with capital one at some time in the future, this voids the agreement in its entirety.

Haven't got a lot of time on my hands at the moment, I'll post up a letter you can send to them in response incorporating all of the above later on this afternoon.

kind regards,
shane

privateryan_2

Firstly... what a legend you are Shane!! If you get a chance to word a letter that would be fantastic... I can't wait to read it!

By my calculations, Lowells will have comitted an offence by not supplying the true executed CCA if indeed the below is not acceptable by this time in a week as my letter was sent Special Delivery on 15/09/2007, (i.e. by 30/10/2007).. So I think I may go fully MSE on them and report them for the offence if the situation remains as is...