Capital one - Robinson way Diary

[sam]

I was issued a default notice on my Cap one account April 2006 as I had applied for a IVA.
Last paymet sent via CCS August 2006.
I received a letter from Capquest March 09 requesting me to make payments or they would forward this account on to their solicitors HL Legal
HL Legal contacted me April 09 stating that if my account was not paid in full then they may start legal proceedings.
14/4/09 I sent a CCA request
I received back some photocopies of some sort of statements! Nothing else..
Robinson Way have been chasing this ever since so i sent a CCA reminder 1/6/10
9/6/10 I received a notice of a home visit so I responed with Niddy's home visit letter.
Since then I've had loads of letters etc from them with all sorts of things threatened including the ice offer Niddy may remember I emailed..

17/2/11 I have received yet another home visit letter stating if I don't agree an affordable payment plan in 10 days then they may send in their local debt collector.

Ignore them or send them something to chew on?

[Never-In-Doubt]

Re: Capital one - Robinson way Diary

I was issued a default notice on my Cap one account April 2006 as I had applied for a IVA.
Last paymet sent via CCS August 2006.
I received a letter from Capquest March 09 requesting me to make payments or they would forward this account on to their solicitors HL Legal
HL Legal contacted me April 09 stating that if my account was not paid in full then they may start legal proceedings.
14/4/09 I sent a CCA request
I received back some photocopies of some sort of statements! Nothing else..
Robinson Way have been chasing this ever since so i sent a CCA reminder 1/6/10
9/6/10 I received a notice of a home visit so I responed with Niddy's home visit letter.
Since then I've had loads of letters etc from them with all sorts of things threatened including the ice offer Niddy may remember I emailed..

17/2/11 I have received yet another home visit letter stating if I don't agree an affordable payment plan in 10 days then they may send in their local debt collector.

Ignore them or send them something to chew on?

Hiya

Are you in an IVA or did it fail/not go ahead? Need to know this first - thanks

[sam]

Re: Capital one - Robinson way Diary

No the IVA never started.
I started to pay them a fiver through CCS after the IVA didn't go ahead but stopped paying that August 2006

[Never-In-Doubt]

Re: Capital one - Robinson way Diary

No the IVA never started.
I started to pay them a fiver through CCS after the IVA didn't go ahead but stopped paying that August 2006

So you're certain, you last paid in Aug 2006? ie it is statute barred next year... we need to blag em for a year really.

Have you sent a CCA request off? If so when

[sam]

Re: Capital one - Robinson way Diary

14/4/09 I sent a CCA request and received back some dodgy photocopy statements nothing like originals.
I sent the CCA request reminder 1/6/10
I paid on the DMP until Feb 07 after looking back through my records.

They also stated in a letter that as I have applied for an IVA it is a breach of contract and they will be adding a default yet my credit file has no default for this account!

[Never-In-Doubt]

Re: Capital one - Robinson way Diary

Can you send their letter to me? Use link in my signature.

Thanks

[sam]

Re: Capital one - Robinson way Diary

Can you send their letter to me? Use link in my signature.

Thanks

The letter saying about the default?

[Never-In-Doubt]

Re: Capital one - Robinson way Diary

The letter saying about the default?

This letter:

They also stated in a letter that as I have applied for an IVA it is a breach of contract and they will be adding a default yet my credit file has no default for this account!

[sam]

Re: Capital one - Robinson way Diary

Ok I emailed that to you Niddy..

Also as I went back in the file I noticed that I sent an S10 10/7/10

[Never-In-Doubt]

Re: Capital one - Robinson way Diary

Ok I emailed that to you Niddy..

Also as I went back in the file I noticed that I sent an S10 10/7/10

Hiya

s.10 are no longer relevant as its fruitless after the McGuffick case so we never use it nowadays.....

[Never-In-Doubt]

Re: Capital one - Robinson way Diary

Hiya

Ok send this to Robinson Way, obviously fill in the blanks (dates etc)...:

Dear Sirs,

Account No: XXXXXXXX

I write with reference to previous correspondence, and in particular to the above numbered account which, for ease and clarity, I hereby deem unenforceable in line with s.127(3) CCA(1974) and this letter is my final response on the matter. In my original letter, dated XX/XX/XXXX, I requested a true copy of the credit agreement to which I genuinely expected to receive an exact copy of that which you hold in your records i.e. an actual "replica" of the agreement which is allegedly signed by myself and your representative. To date, no agreement has been sent and as a result this account is unenforceable in line with s.127(3) Consumer Credit Act 1974.

Whilst I appreciate that under the Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983 you are able to omit a signature and date box from the copy, I would like to hold in my records an exact "true copy" of the document that you hold. I do not want a piece of paper that alludes to there being an agreement; I would like a photocopy of the actual agreement. I also appreciate and understand the provision of the recent Carey v HSBC {and others} case that stipluates a reconstituted agreement can be provided; yes it can however I am disputing the actual existence of such an original which means the Carey case is irrelevant as without one the account would still be deemed unenforceable. Carey only went to prove that if you could not provide an original, for whatever reason, but had proof on your systems/records that certain conditions were in place at that time then a recon could be submitted only in-so-far as to satisfy your s.78 request. If you do not have an original then a recon cannot be produced.

I do not think it is a lot to ask for you to simply go and fetch the original agreement, photocopy it and pop it in an envelope to me. The only reason that I can presume avoidance of such a simple process is if you never actually had a copy of the original agreement in which case may I remind you that OFT Guidance clearly states that lenders would be acting unfairly, and potentially in breach of their consumer credit licenses, if they misled borrowers by:

• hiding or disguising the fact that there was never a proper signed agreement in the first place
• providing only a copy of the current terms and conditions, not the original ones

In order to be able to adjudge my position effectively I would require a "true copy" of the actual agreement that apparently exists and I therefore appeal to you to fulfil my request. I am willing to pay any reasonable charge that you feel is necessary, in order to provide a copy of the “actual” credit agreement. In considering my request, I ask that you take a common sense approach and do not hold to the line that you have provided all that is expected of you nor the recent test case in Manchester, namely, and to be known as: Carey v HSBC Bank Plc [2009] EWHC 3417 (QB) (23 December 2009). The recent McGuffick and Carey cases confirmed that a lender should submit upon request a valid true copy of the original CCA.

I make my request in good faith and I feel it is a nonsense approach to hold to the idea that you won’t provide this document because you simply don’t have to. I feel that would take advantage of your position and such an approach from your business not be in the best interests of a healthy business/client relationship. In light of the above, I consider this account to be unenforceable until such time you properly comply with my original s.78 request and send a photocopy of the original purported document, if it exists. If it does not, then you must confirm this to me in line with your licensing guidance, as detailed above.

For clarification, the document you sent, purporting to be a credit agreement, does not contain all of the prescribed terms as required by section 60(1) Consumer Credit Act 1974. The Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) made under the authority of the “1974 Act” sets out what the prescribed terms are, I refer you to Schedule 6 Column 2 of SI 1983/1553 for the definition of what is required. Suffice to say, all of the required terms are not present in this document. Since this document does not contain the required prescribed terms it is rendered unenforceable by s127 (3) consumer Credit Act 1974, which states:

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).

This situation is backed by case law from the Lords of Appeal in Ordinary (House of Lords) the highest court in the land. Your attention is drawn to the authority of the House of Lords in Wilson-v- FCT [2003] All ER (D) 187 (Jul) which confirms that where a document does not contain the required terms under the Consumer Credit Act 1974 the agreement cannot be enforced.

In addition should you continue to pursue me for this debt you will be in breach of OFT guidelines. These guidelines (issued July 2003 & updated December 2006) relate to debt collections and what the OFT considers unfair, I have enclosed an excerpt from page 5 of the guidance which states;

2.6 Examples of unfair practices are as follows:
h. Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for payment

Similarly, in line with the most recent OFT Guidance surrounding unenforceability (October 2010), you should be aware that the OFT has stipulated the following;

Sections 77-79 of the Consumer Credit Act 1974 outline the information creditors must provide to debtors under fixed-term, running account & Hire Agreements. Under these sections a debtor can pay £1 to get:

• a copy of their agreement
• copies of some of the other documents mentioned in their agreement
• a statement of account.

If this information is not provided within 12 working days the debt becomes unenforceable. This means a creditor cannot:

• make the debtor pay the debt before they're supposed to
• get a court judgment against the debtor

As this account is clearly unenforceable, I expect you to write back and confirm that no further action will be taken and that the account is now closed and no further correspondence will take place; irrespective, unless you do supply a copy of the original agreement I will not correspond with you again and any threats will be averred and unlawful and vexatious with a counter-claim forthcoming.

Finally, please note that I will only communicate with you in writing. Should it be your intention to arrange a doorstep visit, please be advised that under OFT rules, you can only visit me at my home if you make an appointment and I have no wish to make such an appointment with you. There is an implied license under English Common Law for people to be able to visit me on my property without express permission; the postman and people asking for directions etc (Armstrong v Sheppard & Short Ltd [1959] 2 QB 384. per Lord Evershed M.R.). Therefore take note that I revoke license under Common Law for you, or your representatives to visit me at my property and, if you do so, you will be liable to damages for a tort of trespass and action will be taken, including but not limited to, police attendance.

Yours faithfully


Sign digitally

[Never-In-Doubt]

Re: Capital one - Robinson way Diary

Sam's done a runner then

[sam]

Re: Capital one - Robinson way Diary

Ok I now have an automated message on my mobiles answer phone to call Robinson Way!!!
I never gave them my number so how the hell did they get it and is there anything I can do?

PS
I never sent the above letter you added Niddy as I thought I would just ignore the muppets..

[sam]

Re: Capital one - Robinson way Diary

No the IVA never started.
I started to pay them a fiver through CCS after the IVA didn't go ahead but stopped paying that August 2006

It was March 2007

[Never-In-Doubt]

Re: Capital one - Robinson way Diary

Ok I now have an automated message on my mobiles answer phone to call Robinson Way!!!
I never gave them my number so how the hell did they get it and is there anything I can do?

PS
I never sent the above letter you added Niddy as I thought I would just ignore the muppets..

Its up to you, carry on ignoring them or send that letter from above!