Am I stupid....?

[LCM]

Hi All,

 

I sent my CCA request to Capital One on 21st November. They responded on 1st December with the following:

 

Please find enclosed a copy of the current terms and conditions of your agreement, in compliance with section 78 of the Consumer Credit Act 1974.

Your account is in default and the amount currently due and payable is £xxx.

You requested a copy of the default notice we issued on your account. Under section 78 we are not required to provide a copy of the default notice and statement of default. However we can confirm that a statement of default was issued on 24th November 2008.

I trust this information will help with your enquiries. If you need any further information please contact me.

Ellie Renshaw.

 

Admittedly I am a novice but don't honestly believe I'm stupid, however please would somebody confirm if the above would help with my enquiries? Do I need to send 'another chance' letter?

[LilyLou]

bump

[steven4064]

"Am I stupid?" is probably not a question to ask on an open forum

 

However, in answer to your (other) question - it depends on what you are trying to achieve.

 

They are quite right BTW, what they have sent does comply with regulations as a response to a s78 request and they don't have to send you a copy of the DN in response to a s78 request.

 

But, what they have sent is not enforceable and they do have to prove that a DN in the correct form was sent in order to start court proceedings (not that that would get them anywhere without an enforceable agreement)

[LCM]

Haha, I am a novice!

 

So, I need to ask again for sight of a true copy of a properly executed agreement? Is there a second chance letter anywhere?

 

L

[steven4064]

I don't think you will get anything else from them. As far as they are concerned, they have fulfilled their obligation under s78.

 

Please let us know what you are trying to achieve and we can advise further.

[LCM]

Oh right!

 

I'm trying to establish if they hold an enforceable agreement. I was under the impression cards taken out pre2006 were not all correctly processed in accordance with the CCA 1974 and therefore, if mine isn't, I'm hoping it will put me in a better position to clear my debts sooner.

 

I do have significant debts which I have been managing through Payplan on a DMP for the last 2 years, which has been great, but at the same time, the majority of these creditors are continuing to apply interest and with 2 years behind me, the realisation of another 20 or 30years of the same is too depressing! So, from reading on this site and other advice, I'm trying to clean it up and shorten the sentence really.

 

L

[steven4064]

I would doubt that Cap1 have kept a copy of an agreement that is enforceable. So one option would be to make them and offer to clear the debt of about 20-25% of the outstanding balance, which is what they would get if they sold it to a DCA.

 

However, before that, there are probably loads of unlawful charges (plus interest on the charges) which you should reclaim. If you haven't got all your statements, send an SAR to get them and we'll take it from there.

[PGH7447]

"Am I stupid?" is probably not a question to ask on an open forum

 

 

 

LOL, several retorts did spring to mind, but I resisted

[LCM]

Okay, thanks guys! Apologies if I am being stupid. Just trying to work out the best use of all the advice for my particular circumstances.

 

Will SAR Capital one and see what they've been charging me.

 

So does that mean a SAR is a better request than a CCA for all my creditors? I'm now not sure I understand the point of a CCA request other than to be sent something that does comply with the request, but may not be enforceable, although they could have something enforceable but don't have to send it? I feel stupid........:-?

 

L

[steven4064]

LOL, several retorts did spring to mind, but I resisted

Very commendable PGH - well done

So does that mean a Subject Access Request is a better request than a CCA for all my creditors? I'm now not sure I understand the point of a CCA request other than to be sent something that does comply with the request, but may not be enforceable, although they could have something enforceable but don't have to send it?

You may need both. For some reason companies donot seem to send a copy of the agreement in response to an SAR, although I think they ought to. The point of a CCA request is really if you want to challenge the agreement or have some amunition if they are behaving badly. Very few companies seem to keep 'proper' copies of agreements, so more fool them.

[LCM]

You may need both. For some reason companies donot seem to send a copy of the agreement in response to an Subject Access Request, although I think they ought to.

 

And they don't send one after a CCA request....in this case at least?

 

When you say challenge it, you mean challenge the fact of there being one? So what I really need to know is just because they didn't send me a copy of my agreement, should they have from the CCA request? You initially told me they had complied with my request.....yet no agreement!

 

Thanks

Despondent L

[steven4064]

Originally, as far as I understand, the intention of s78 was that creditors should supply a copy of the agreement so that debtors would know what terms they had signed up to, for example, if they had lost their copy of the agreement. However, in the 1983 regulations this was watered down on the assuption (I guess) that , if all the debtor needed to know was the terms of teh agreement then they could just be sent that. So the 1983 regs allow a s78 reuqest to be satisfied just by sending a copy of the T&Cs - which is what you have been sent.

 

Now, if a creditor (prticularly a DCA) was taking you to court, you might want rather more than jsut T&Cs, you might want to know if they actually had the right to collect the debt. So you would actually want a copy of the agreement. The only way to get this is to send a s78 request but you run the isk of just geting T&Cs as described above.

 

So you get into this circular argument with the creditor - you ask them for the agreement to prove they can collect the debt and they keep saying they have complied with your s78 request by sending somethinhg less. If a court case is in the offing though, it soon becomes clear if they are hiding behind the 1983 regs because they don't actually have an enforceable agreement. When that happens, you can tell them to get lost.

[LCM]

Steven, many thanks for that.

 

Sorry for being confused, it's all rather cryptic, depending on the angle you're coming from! But that's fine, I understand what you're saying about the Agreements and that is a help as I was under the impression they had to provide a copy on request. If they didn't after 12+2 they were in default and meant they more than likely didn't have one, which would put me in a fab position to say 'this is all I've got, now bogoff!' Not quite as clear cut though....

 

Okay, going to regroup and, back to the beginning with a SAR!

 

Thanks for your help.

 

L

[steven4064]

It took me months to get it all sorted in my head

 

THe CCA 1974 is quite complicated but enforceability is dealt with essentialy in

 

1. section 61 - a properly executed agreement is enforceable

 

2. section 65 - an agreement that is not properly executed is only enforceable by an order of the court

 

3. section 127(3) - an agreement is only enforceable by a court if it has the debtor's signature and the prescribed terms on the same document.

 

Section 78 is about something else entirely.

[LCM]

Right, I'm with you, thanks.

 

L