CCA never sent

[ajl75]

Hi all,

I have a previous thread on here but thought putting a new one with my update would hopefully bring about some advice.

to summarise

5 year old Credit card debt which is in my name that I totally ignored for £388 with capital one. It was a previous marriage and my total lack of sense that led to me prioritising other debts meant this went to default.

December last year Cabot sent me a letter threatening court action. I was advised to send a CCA request which I did at the beginning of December. The wrote back to me on 21st of December asking for 40 days to get the info from the lender.

During that time I still kept receiving letters from them and more recently Mortimer Clark solicitors chasing me for money.

No CCA received and today 11/08/16 I has a CCJ threat letter from Mortimer clark so I called them.

I did not acknowledge the debt but told them the debt is not enforceable as I they have not complied with the CCA request.

I was informed by them that they received the CCA in March didn't log in until April and forgot to send it to me and will put my account on hold for 14 days and send it out.

My questions are:

Can the debt be passed to Mortimer Clark if they've not complied with the CCA request?
Is it ok for them to progress it to the CCJ stage (or at least the threatening stage) when they've not sent the CCA?
Is it possible they do not have the CCA?
Whilst the debt is only £338, and if mine I will pay it, if I agree a payment plan does the default date change?
Finally, am I in a position to ask for a reduced settlement figure.

I know I said this was a summary and I apologise for how long this is.

I thank you all in advance.

[Anthony72]

Re: CCA never sent

Hi
In short
Yes
If a CCA request is not complied with in the statutory time it renders the debt unenforceable UNTIL it is complied with. Sadly though, according to an appeal court case , enforcement does not include registering a default, chasing for payment or indeed issuing a claim.

Personally I think that is most unfair because if a claim is issued, and like most goes undefended , the claimant gets a CCJ which is enforcement and thus barred under the various sections of the consumer credit act

Of course if no cca has been sent it may be possible to get a ccj set aside but only if there is a good reason for not defending -such as being sent to the wrong address etc. It goes to show how stupid the law can be sometime.

So MC have said they will send you the CCA , personally I would give it a few days and then write to them - do not talk on the phone, and tell them something along the lines of
Dear Sir
Further to your letter dated xxxxxx
I refer you to my lawful S78 request made on xxxxxx ( copy and proof of delivery enclosed-if you have them) which to date has not been complied with. I therefore refer you to S78(6) CCA ( You could always cut and past S78(6) into the letter )

Yours
ajl75

I would be inclined to sign it but use an anti tamper strip

I read on another site that generally Cap One agreements are unenforceable but I dont know how true that is

When was the account opened?

[charitynjw]

Re: CCA never sent

Hi all,

I have a previous thread on here but thought putting a new one with my update would hopefully bring about some advice.

to summarise

5 year old Credit card debt which is in my name that I totally ignored for £388 with capital one. It was a previous marriage and my total lack of sense that led to me prioritising other debts meant this went to default.

December last year Cabot sent me a letter threatening court action. I was advised to send a CCA request which I did at the beginning of December. The wrote back to me on 21st of December asking for 40 days to get the info from the lender.

During that time I still kept receiving letters from them and more recently Mortimer Clark solicitors chasing me for money.

No CCA received and today 11/08/16 I has a CCJ threat letter from Mortimer clark so I called them.

I did not acknowledge the debt but told them the debt is not enforceable as I they have not complied with the CCA request.

I was informed by them that they received the CCA in March didn't log in until April and forgot to send it to me and will put my account on hold for 14 days and send it out.

My questions are:

Can the debt be passed to Mortimer Clark if they've not complied with the CCA request?
Yes; they are Cabot's in-house solicitor.
Is it ok for them to progress it to the CCJ stage (or at least the threatening stage) when they've not sent the CCA?
They cannot enforce the alleged debt without complying.
Is it possible they do not have the CCA?
Possible.
Whilst the debt is only £338, and if mine I will pay it, if I agree a payment plan does the default date change?
This would acknowledge the debt anyway.
Finally, am I in a position to ask for a reduced settlement figure.
Imho, I would wait to see what happens re the CCA request.

I know I said this was a summary and I apologise for how long this is.

I thank you all in advance.

They haven't yet claimed via court; they do quite often, around this stage, offer a reduced settlement.

[ajl75]

Re: CCA never sent

Hi
In short
Yes
If a CCA request is not complied with in the statutory time it renders the debt unenforceable UNTIL it is complied with. Sadly though, according to an appeal court case , enforcement does not include registering a default, chasing for payment or indeed issuing a claim.

Personally I think that is most unfair because if a claim is issued, and like most goes undefended , the claimant gets a CCJ which is enforcement and thus barred under the various sections of the consumer credit act

Of course if no cca has been sent it may be possible to get a ccj set aside but only if there is a good reason for not defending -such as being sent to the wrong address etc. It goes to show how stupid the law can be sometime.

So MC have said they will send you the CCA , personally I would give it a few days and then write to them - do not talk on the phone, and tell them something along the lines of
Dear Sir
Further to your letter dated xxxxxx
I refer you to my lawful S78 request made on xxxxxx ( copy and proof of delivery enclosed-if you have them) which to date has not been complied with. I therefore refer you to S78(6) CCA ( You could always cut and past S78(6) into the letter )

Yours
ajl75

I would be inclined to sign it but use an anti tamper strip

I read on another site that generally Cap One agreements are unenforceable but I dont know how true that is

When was the account opened?

The account was opened 2010/2011.

Out of interest, what is s78 (6)?

Thank you for your detailed response.

[Anthony72]

Re: CCA never sent

http://www.legislation.gov.uk/ukpga/1974/39/section/78

It says that while in default of a CCA request (S78(1)) the debt becomes unenforceable

[ajl75]

Re: CCA never sent

Good morning all,

So today the dreaded letter came. It was a letter from Cabot stating they think the debt is enforceable.

Enclosed was a poor quality copy of a credit agreement. It's not physically signed by me. Also is a copy of terms and conditions and copies of statements which are just print outs not on official capital one paper.

Genuinely don't recall any of the payments and at that time I had a joint account with my ex wife. The account was opened apparently in September 2010.

Is that it now? Do I have any room for manoeuvre? By that I don't mean can I avoid paying. If it's my debt then I will pay it but does anyone think a settlement figure is worth a try? Does it need to be physically signed myself before its enforceable??

Any help would be great.

Thanks.

[ajl75]

Re: CCA never sent

Hi Anthony. Just wondered what you thought of my latest post.

I have tried hard to read through the CCA that was sent and the terms and conditions but I can't make any of it out. Does that even matter? Also, does it matter that it's not actually signed by me?

Cheers in advance.

Antony

[charitynjw]

Re: CCA never sent

Hi Anthony. Just wondered what you thought of my latest post.

I have tried hard to read through the CCA that was sent and the terms and conditions but I can't make any of it out. Does that even matter? Also, does it matter that it's not actually signed by me?

Cheers in advance.

Antony

For the purposes of complying with s78, a signature is not necessary.
But it must be accurate in other respects, &, of course, legible.

Btw, CCA s78(6), to answer your previous query.

(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;F3.

[ajl75]

Re: CCA never sent

Forgive me, I'm a little slow with this subject.

Can I request a clearer copy of what they've sent? My signature is on there electronically. I'm guessing that's ok. I can't make out any of the terms and conditions though. It looks like it's a fax that's been sent.

Do I have anywhere to go with this. It appears like they believe they have everything they need to proceed to CCJ.

Thank you so much for your reply.

[charitynjw]

Re: CCA never sent

Forgive me, I'm a little slow with this subject.

Can I request a clearer copy of what they've sent? My signature is on there electronically. I'm guessing that's ok. I can't make out any of the terms and conditions though. It looks like it's a fax that's been sent.
If it were me I'd write back to them, thanking them for their reply to the CCA request,, contents duly noted, & (without telling them why) suggest that, in order to save further court costs, they withdraw/discontinue their claim.

Do I have anywhere to go with this. It appears like they believe they have everything they need to proceed to CCJ. That's what they would like you to believe. It may be true; it may not be.

Thank you so much for your reply.

####

[ajl75]

Re: CCA never sent

Thank you for your reply.

Can I ask; what would be your reasons for asking them to withdraw? Is it purely to see what their reaction is or do you believe I have a justifiable reason to ask.

This topic is a minefield!!

[charitynjw]

Re: CCA never sent

Thank you for your reply.

Can I ask; what would be your reasons for asking them to withdraw? Is it purely to see what their reaction is or do you believe I have a justifiable reason to ask.
You have made a lawful statutory request; they have sent you some bovine excrement, & they have the audacity to state that they can proceed to court with it? You don't have to do their job for them.

This topic is a minefield!!

####

[ajl75]

Re: CCA never sent

Ha ha. Thank you for your brilliant reply.

[Anthony72]

Re: CCA never sent

Hi
Sorry I'm so late to get back
I don't think there is much that I can say that Charity hasn't said , they are probably far more knowledgeable than me anyway

I was told that when a non compliant CCA request was sent back you just wrote back ONCE saying thank you for the documents but it does not comply with S78 - this is pretty much what charity has said and I don't think my version is better, in fact I think their's is

With a S78 request basically you should get legible copies of
1) the agreement - or a reconstructed document that would have been the agreement
2) Any terms and conditions that went with the agreement that were current when you took the agreement out
3) If the terms have varied, they need to send a set of terms that were valid when the account was defaulted/terminated
4) A signed statement of account- but this can just be a balance

Just something to look at as they do seem to get it wrong , on the terms and conditions does it say what version it is, usually bottom corner something like V14

I know it is 'only' £388 , if they do think about proceeding can you find the money to make an offer. I am not suggesting for a moment that you do but it is an idea to hold in check just in case

[ajl75]

Re: CCA never sent

Hi Anthony,

Thanks again for your response.

The agreement and t's and C's appear to be a fax copy that they've sent to me. No version numbers and you cannot make out any of the text.
They've sent statements but capital one statements just what appear to be computer print outs.

In regards to the payment; if I have to pay I will. How do think I would fare if I asked for a settlement? What would seem a reasonable offer to make them??

Cheers